EXHIBIT 99.3
Receivables Purchase
Agreement
Tech Pacific Holdings Pty Limited
Waratah Receivables Corporation Pty Limited
Westpac Banking Corporation
Receivables Purchase Agreement
TABLE OF CONTENTS
1. INTERPRETATION 1
1.1 Definitions 1
1.2 Interpretation 25
2. RPA COMMITMENT 26
2.1 Sale notices 26
2.2 Limit 28
2.3 Further Instalments 28
2.4 Security Interest 29
2.5 Registration on PPSR 29
2.6 PPSA Provisions 30
2.7 Extension 30
2.8 Voluntary termination of RPA Commitment or reduction of Purchase Limit 30
2.9 Liquidity availability 31
2.10 Seller obligations upon RPA Termination 31
2.11 Commercial Paper Notes 31
2.12 Appointment of Seller's Agent 31
3. COLLECTION 32
3.1 Collection of Receivables 32
3.2 Deemed Collections 32
3.3 Return of Distribution 34
3.4 Interpretation 34
4. SETTLEMENT PROCEDURES 34
4.1 Settlement Procedures for all Collections 34
4.2 Discharge and Reserves 35
4.3 Adjustments to Reserves 36
4.4 Payments and Computations, etc. 36
4.5 Additional payments 36
4.6 Reimbursement 37
4.7 Treatment of Collections 37
4.8 Settlement arrangements 37
4.9 Circumstances where clauses 3 and 4 become inoperative 37
5. FEES 38
5.1 Arranger Fee 38
5.2 Changes in law 38
5.3 Program Costs 38
5.4 Prepayment Amount 38
6. CONDITIONS PRECEDENT TO PURCHASES 38
6.1 Conditions precedent to initial Purchase 38
6.2 Further conditions precedent 39
7. REPRESENTATIONS AND WARRANTIES 40
7.1 Representations and warranties 40
Page (i)
Receivables Purchase Agreement
7.2 General representations and warranties 44
7.3 Reliance on representations and warranties 44
8. UNDERTAKINGS 45
8.1 General undertakings 45
8.2 Undertaking by the Agent 50
9. ADMINISTRATION, SERVICING, COLLECTION AND BACK-UP SERVICING 51
9.1 Appointment 51
9.2 Duties of the Servicer 51
9.3 Replacement of the Servicer 52
9.4 Remuneration of Successor Servicer 52
9.5 Rights of the Agent 52
9.6 Responsibilities of the Seller 53
9.7 Further action evidencing purchase 53
9.8 Application of Collections 54
9.9 Stand-by Servicer 54
9.10 Indemnities by the Company 55
10. EARLY AMORTISATION EVENTS; SERVICER TRANSFER EVENTS; TERMINATION;
EVENTS OF REVIEW 56
10.1 Early Amortisation Events 56
10.2 Remedies 57
10.3 Other consequences 58
10.4 Event of Review 58
10.5 Collection Account Letter 58
10.6 Trade Credit Insurance Policies 58
11. INDEMNIFICATION 58
11.1 General indemnity 58
12. POWER OF ATTORNEY 60
12.1 Seller Appointment 60
12.2 Australian Approved Originator Appointments 60
12.3 NZ Approved Originator Appointments 60
13. THE AGENT 61
13.1 Authorisation and action 61
13.2 Agent's reliance etc. 61
13.3 Agent and Associates 62
14. ASSIGNMENT OF PURCHASED RECEIVABLES 62
14.1 Restrictions on assignments 62
14.2 Rights of Assignee 63
14.3 Rights of the Security Agent 63
15. LIMITED RECOURSE 63
15.1 Limit and release 63
15.2 Unrestricted remedies 63
15.3 Restricted remedies 64
15.4 Survival 64
Page (ii)
Receivables Purchase Agreement
16. INTEREST ON OVERDUE AMOUNTS 64
16.1 Accrual 64
16.2 Payment 64
17. MISCELLANEOUS 64
17.1 Notices 64
17.2 Severability clause 65
17.3 Amendments 65
17.4 Governing Law and jurisdiction 65
17.5 Survival of representations and indemnities 65
17.6 No bankruptcy petition against the Company 65
17.7 Set-off 66
17.8 Costs and expenses 66
17.9 Waivers; remedies cumulative 67
18. CONFIDENTIALITY 67
18.1 Confidentiality 67
18.2 Counterparts 69
19. GST 69
19.1 Interpretation 69
19.2 Consideration is GST exclusive 69
19.3 Gross up of consideration 69
19.4 Reimbursements (net down) 70
20. PRIVACY 70
21. CODE OF BANKING PRACTICE (2003) 70
ANNEXURE A - PART 1
[Intentionally omitted]
ANNEXURE A - PART 2
[Intentionally omitted]
ANNEXURE A - PART 3
[Intentionally omitted]
ANNEXURE B
[Intentionally omitted]
ANNEXURE C
[Intentionally omitted]
ANNEXURE D
[Intentionally omitted]
ANNEXURE E
[Intentionally omitted]
ANNEXURE F - AUSTRALIA
[Intentionally omitted]
ANNEXURE G - NEW ZEALAND
[Intentionally omitted]
Page (iii)
Receivables Purchase Agreement
ANNEXURE H - AUSTRALIA
[Intentionally omitted]
ANNEXURE I - NEW ZEALAND
[Intentionally omitted]
ANNEXURE J
[Intentionally omitted]
ANNEXURE K
[Intentionally omitted]
Page (iv)
Receivables Purchase Agreement
DATE
PARTIES
1. TECH PACIFIC HOLDINGS PTY LIMITED (ABN 49 002 956 096) incorporated
under the laws of Australia of 00 Xxxxxxx Xxxxxx, Xxxxxxxx XXX 0000
(the SELLER, the SERVICER and the SELLER'S AGENT)
2. WARATAH RECEIVABLES CORPORATION PTY LIMITED (ABN 82 061 389 277)
incorporated under the laws of Australia of Xxxxx 00, Xxxxxxx Xxxxx,
0 Xxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx (the COMPANY)
3. WESTPAC BANKING CORPORATION (ABN 33 007 457 141) incorporated under
the laws of Australia of 00 Xxxxxx Xxxxx, Xxxxxx, in its capacity as
agent for the Company (the AGENT) and in its capacity as back-up
servicer (the BACK-UP SERVICER) and in its corporate capacity
(WESTPAC)
RECITALS
A The Seller has, and expects to have, Receivables which the Seller
may wish to sell. All of the Receivables will be acquired by the
Seller from Approved Originators.
B The parties have entered into this agreement to set out the terms
which will apply if the Seller makes an offer to the Company to
sell, and the Company agrees to purchase, such Receivables from the
Seller from time to time during the term of a Future Agreement.
C Westpac has been requested, and is willing, to act as the Agent and
the Back-Up Servicer.
IT IS AGREED as follows.
1. INTERPRETATION
1.1 DEFINITIONS
The following definitions apply unless the context requires otherwise.
ACCOUNTS means profit and loss accounts, balance sheets and cashflow
statements together with any statements, reports (including any directors'
and auditors' reports) and notes attached to or intended to be read with
any of them.
ACCOUNTS RECEIVABLE TRIAL BALANCE means the accounts receivable trial
balance, in either computer disk or hard copy computer printout form,
summarising debit and credit entries and the Original Balances for
Receivables as at the Determination Date, containing a list of Obligors
and the Original Balances of the Receivables due to each Approved
Originator as at that date in a form acceptable to the Agent acting
reasonably.
Page 1
Receivables Purchase Agreement
ACCRUED INTERIM COST means, for any Remittance Date, the aggregate of any
Accrued Interest Cost and Retention Amount that has not been paid on any
preceding Remittance Dates as a result of there being insufficient
Collections.
ACCRUED INTEREST COST means, for any Remittance Date, an amount equal to
the sum of the product of the following amounts calculated for each day
during the Yield Period ending on that Remittance Date:
(a) the aggregate of:
(i) the Program Outstandings on that day whether or not any
Commercial Paper Notes relating to those Program Outstandings
mature on that day; and
(ii) Accrued Interim Cost;
(b) the Company Rate for that day; and
(c) 1/365.
ACCRUED LIQUIDITY COST means for any Remittance Date, the aggregate
interest accrued on all Liquidity Loans and Credit Advances outstanding at
any time during the Yield Period ending on that Remittance Date which has
accrued from the first day through the last day of that Yield Period
(whether or not such Liquidity Loan or Credit Advance matures during that
Yield Period) at:
(a) the Bank Xxxx Rate for such Liquidity Loan; or
(b) if an Early Amortisation Event pursuant to clause 10.1(a) is
subsisting, the Alternate Base Rate; or
(c) in the case of any Purchased Receivables where the related
Commercial Paper Notes were issued by Sydney Corp and purchased by
Westpac as underwriter because there were unsold Commercial Paper
Notes due to a market disturbance in the United States commercial
paper market, the rate per annum determined for such Purchased
Receivables under paragraph (b) of this definition. The Agent
undertakes to the Seller that any drawing of the underwriting
facility will be repaid on the next Business Day, by a drawing on
the Liquidity Facility Agreement.
ADJUSTED DILUTION RATIO means, on any date, the ratio (expressed as a
decimal) calculated as of the most recent Determination Date by dividing
the sum of the Dilution Ratios at each of the 12 consecutive Determination
Dates ending with such Determination Date by 12.
ALTERNATE BASE RATE means 2.0% plus the Bank Xxxx Rate for consecutive
periods of one month, (expressed as a rate per annum).
APPROVED ORIGINATOR means an Australian Approved Originator or a NZ
Approved Originator.
APPROVED ORIGINATOR SALE NOTICE means, in respect of:
(a) an Australian Approved Originator, a notice substantially in the
form of Annexure A Part 2 (or such other form as the Seller and that
Australian Approved Originator may agree); and
(b) an NZ Approved Originator, a notice substantially in the form of
Annexure A Part 3 (or such other form as the Seller and that NZ
Approved Originator may agree),
under which that Australian Approved Originator or NZ Approved Originator
offers to sell Receivables originated by it to the Seller.
Page 2
Receivables Purchase Agreement
APRA means the Australian Prudential Regulation Authority.
ASSOCIATE in relation to an entity means:
(a) a Related Corporation of that entity;
(b) an entity, or the trustee or manager of a trust, which has a
Controlling Interest in that entity, or a Related Corporation of
that entity;
(c) a Related Corporation of an entity included in paragraph (b) or (e);
(d) a director of that entity or an entity included in paragraph (a) or
(c);
(e) a corporation, or the trustee or manager of a trust, in which one or
more entity or person mentioned in paragraph (a), (b), (c), (d),
(e), (f) or (g) alone or together has a Controlling Interest;
(f) the trustee of a discretionary trust of which an entity or person
included in paragraph (a), (b), (c), (d) (e) or (g) is a beneficiary
(whether or not through one or more other discretionary trusts); or
(g) an entity of which a director of that entity or a Related
Corporation of that entity is also a director.
For the purposes of this definition:
(i) where a person is a beneficiary of a discretionary trust, that
person shall be taken to own, and control, all the assets of
that trust;
(ii) DIRECTOR has the meaning given in the Corporations Xxx 0000;
and
(iii) a person has a CONTROLLING INTEREST in a corporation or trust
if:
(A) the corporation or its directors, or the trustee or
manager of the trust or its directors, are accustomed,
or under an obligation, whether formal or informal, to
act in accordance with the directions, instructions or
wishes of that person or of that person in concert with
others; or
(B) the person has a relevant interest (as defined in the
Corporations Act 2001) in aggregate in more than 20% of
the issued or voting shares, units or other interests in
the corporation or trust (in number, voting power or
value), or would have that relevant interest if any
rights were exercised to subscribe for, or acquire or
convert into, shares, units or other interests which are
issued or unissued. The definition of relevant interest
applies as if units or other interests were shares.
AUSTRALIAN APPROVED ORIGINATOR means Tech Pacific Australia Pty Limited
(ABN 37 000 628 400) or any other Australian incorporated Subsidiary of
the Seller that the Agent approves of as an Australian Approved Originator
from time to time.
AUSTRALIAN COLLECTION ACCOUNT means the account in the name of Tech
Pacific Australia Pty Ltd BSB number 032035, account number 146989 at
Mascot, New South Wales or such other account approved by the Agent.
AUSTRALIAN RECEIVABLE means a Receivable originated by the Seller or an
Australian Approved Originator in Australia.
Page 3
Receivables Purchase Agreement
AUTHORISATION means:
(a) any consent, authorisation, registration, filing, lodgement,
agreement, notarisation, certificate, permission, licence, approval,
authority or exemption from, by or with a Governmental Agency; or
(b) in relation to anything which will be fully or partly prohibited or
restricted by law if a Governmental Agency intervenes or acts in any
way within a specified period after lodgement, filing, registration
or notification, the expiry of that period without intervention or
action.
AUTHORISED OFFICER means:
(a) in respect of the Company, the Seller, the Servicer or an Approved
Originator, any director or secretary, or any person from time to
time nominated as an Authorised Officer by the Company, the Seller,
the Servicer or an Approved Originator, as the case may be, by a
notice to the relevant party accompanied by certified copies of
signatures of all new persons so appointed; and
(b) in respect of the Agent or the Back-up Servicer, any person whose
title or acting title includes the word DIRECTOR , MANAGER or
ASSOCIATE or cognate expressions, or any secretary or director, or
any person from time to time nominated as an Authorised Officer by
that party by a notice to the relevant party accompanied by
certified copies of all signatures of all new persons so appointed.
BANK XXXX RATE for a period means:
(a) the average bid rate displayed at or about 10.15am (Sydney time) on
the first day of that period on the Reuters screen BBSWAV page for a
term equal or closest to (within 5 days) that period; or
(b) if for any reason that rate is not displayed for a term equal or
closest to (within 5 days) that period, then the Bank Xxxx Rate will
be the rate calculated by the Agent at or about 10.15am (Sydney
time) on the first day of the period to be the Agent's estimate in
good faith of the rate calculated on a linear interpolation or
extrapolation basis using the two rates displayed at or about
10.15am (Sydney time) on the first day of that period on the Reuters
screen BBSWAV page having a term closest to that period; or
(c) if the basis on which that rate is displayed is changed and in the
reasonable opinion of the Agent it ceases to reflect the cost of
funding of the Company to the same extent as at the date of this
agreement solely due to the change, then the Bank Xxxx Rate will be
the rate calculated by the Agent as the Company's cost of funds for
a term equal or closest to (within 5 days) the period in
consultation with the Seller to be the average of the buying rates
quoted to the Agent on the first day of the period by 3 large
Australian banks selected by the Agent (as relevant); or
(d) if the Bank Xxxx Rate cannot be determined under paragraphs (a), (b)
or (c), the rate will be the rate determined by the Agent to be the
Company's cost of funds for a term equal or closest to (within 5
days) the period in consultation with the Seller.
XXXX has the same meaning as in the Bills of Xxxxxxxx Xxx 0000 (Cwlth).
Page 4
Receivables Purchase Agreement
BUSINESS DAY means any day other than a Saturday or Sunday or a day when
banks are authorised or required by law to close in Sydney or, where the
place where the act matter or thing to be done or occur on a Business Day
is New York or Auckland, in New York or Auckland (as the case may be).
CARRYING COSTS means, for any Remittance Date, the sum of:
(a) the Dollar amount for that Remittance Date of the Accrued Interest
Cost and the Accrued Liquidity Cost; and
(b) any Retention Amount and any Program Costs for that Remittance Date.
CHARGEE means any person, other than the Company, to whom the Seller or
any Approved Originator has granted a Security Interest.
CHARGE-OFF RECEIVABLE means a Purchased Receivable (other than any Overdue
Receivable or Receivable Ineligible for Funding):
(a) as to which an Insolvency Event has occurred and is subsisting with
respect to the Obligor; or
(b) which the Seller, or if the Seller is not the Servicer, the
Servicer, has taken all reasonable steps to collect and enforce, and
has concluded in accordance with its usual practice is not
reasonably recoverable and has been written off in accordance with
the Credit and Collection Policy.
COLES means Coles Xxxx Limited ACN 004 089 936 and its Subsidiaries.
COLLECTION ACCOUNT means the Australian Collection Account and the NZ
Collection Account.
COLLECTION ACCOUNT LETTER means a letter from the Seller (or its
Associate) to the Company, the Agent and Westpac in its various
capacities, in relation to the operation of the relevant Collection
Account.
COLLECTION PERIOD means, in respect of a Remittance Date:
(a) the calendar month ending on (and including) the last day of the
calendar month immediately before that Remittance Date; or
(b) if an Early Amortisation Event has occurred and is subsisting, a
period selected by the Agent, notice of which is given to the
Servicer.
COLLECTIONS means, with respect to any Purchased Receivable, all funds
which after the date of a Future Agreement either are:
(a) received by the Seller or the Servicer from or on behalf of the
related Obligors in payment of any amounts owed in respect of such
Purchased Receivable or applied to such amounts owed by such
Obligors (including, without limitation, by set off, counterclaim,
netting or any similar right or defence);
(b) any amount deemed to be received by the Seller or Servicer under
clause 3.2, or any amount paid to the Company under clause 11 which
is not in respect of any penalty, fine, Tax or obligation of any
Indemnified Party to any other person; or
(c) any amounts paid under an Insurance Policy.
COMMERCIAL PAPER NOTES means the short-term promissory notes issued by
Sydney Corp or Waratah Securities the proceeds of which are to be on-lent
under the relevant SPV Loan Agreement to the
Page 5
Receivables Purchase Agreement
Company to enable the Company to fund its acquisition of or maintenance of
its interest in any Purchased Receivables.
COMMITMENT TERMINATION DATE means the earlier to occur of:
(a) the Scheduled Commitment Termination Date; and
(b) the date of termination of the RPA Commitment under clause 2.8, 10.2
or 10.4(b).
COMPANY RATE for any day within a Yield Period for the Purchased
Receivables means in the case of any Purchased Receivables, a rate per
centum per annum for each Yield Period calculated by:
(a) determining the Program Outstandings;
(b) determining the Dollar amount required by the Company to repay to
Sydney Corp or Waratah Securities (as the case may be) an amount
equal to the minimum aggregate face amount of the Commercial Paper
Notes issued to fund the relevant Program Outstandings and
outstanding on that day (the Dollar equivalent amount being
calculated in the case of Commercial Paper Notes issued by Sydney
Corp at the forward exchange rate as achieved by the Company and the
Agent on the day the relevant Commercial Paper Notes are issued by
the Company to exchange Dollars into US dollars equal to the
aggregate face amount of such Commercial Paper Notes);
(c) dividing the excess of the amount determined under paragraph (b)
over the amount determined under paragraph (a) by the amount
determined under paragraph (a); and
(d) multiplying the amount calculated in paragraph (c) by 36,500 and
dividing that amount by the number of days in such Yield Period,
however, on any day when any Early Amortisation Event pursuant to clause
10.1(a) has occurred and is subsisting (the RELEVANT DAY), the Company
Rate in relation to any Accrued Interest Costs that have not been paid
within (2) two Business Days of becoming due under this agreement shall
mean a rate per annum equal to the greater of the Company Rate applying on
the day prior to the occurrence of that Early Amortisation Event and the
Alternate Base Rate on the Relevant Day.
COMPANY'S INVESTMENT means:
(a) subject to paragraphs (b) and (c), at any time an amount equal to
the sum of all payments of Instalments and Further Instalments less
the sum of all reductions in the Company's Investment under clause
4.1(c)(iv).
(b) The Company's Investment shall not be reduced by any distribution of
Collections:
(i) until that distribution is received by the Company in
immediately available funds or (to avoid double counting where
Collections are applied towards meeting an Instalment) has
been applied in accordance with clause 4.8 in satisfaction of
the Instalment; or
(ii) if at any time that distribution is rescinded or must
otherwise be returned for any reason.
(c) On any Purchase Date, the Company's Investment shall include
(without double counting) any Instalment to be made by the Company
under a Sale Notice offered to and accepted by the Company with
respect to that Purchase Date.
Page 6
Receivables Purchase Agreement
COMPUTER DISK means a computer disk or email confirmation that contains a
summary or list of Purchased Receivables (including all Eligible
Receivables (if any) that have been originated since the last Purchase
Date to the extent they have not been included in a Computer Disk that has
previously been given by the Seller to the Company).
CONCENTRATION LIQUIDITY FACILITY AGREEMENT means the agreement so called
between the Company, as borrower, Westpac as Servicing Agent for the
Company and as Liquidity Agent, and the Liquidity Participants entered
into in connection with this agreement.
CONCENTRATION LIMIT means in relation to:
(a) [Intentionally omitted]
(b) [Intentionally omitted]
(c) [Intentionally omitted]
(d) [Intentionally omitted]
(e) the amount that the Agent specifies (from time to time) at request
of the Seller in respect of any other company that the Agent
specifies as a Concentration Obligor from time to time;
(f) in respect of any other Obligor at any time, or for any Obligor
referred to in paragraphs (a) - (e) once it is no longer a
Concentration Obligor, 2.0% of the Company's Investment at that
time.
CONCENTRATION OBLIGOR means:
(a) Coles;
(b) Corporate Express;
(c) Xxxxxx Xxxxxx;
(d) Woolworths; and
(e) any other company that the Agent specifies as a Concentration
Obligor from time to time.
CONCENTRATION RESERVE means the aggregate of the amounts by which the
Outstanding Balance of each Obligor's Purchased Receivables exceeds the
Concentration Limit for that Obligor.
CONCENTRATION TERM means the period of one year from the date the first
Sale Notice (if any) is accepted by the Company, as extended under the
Concentration Liquidity Facility Agreement and clause 2.7(b), but in any
event expiring when the Concentration Liquidity Facility Agreement is
terminated in accordance with its terms.
CONSUMER CREDIT LEGISLATION means any legislation relating to consumer
credit including:
(a) the Credit Act of any Australian state or territory;
(b) the Consumer Credit (Queensland) Xxx 0000;
(c) the Credit Contracts Xxx 0000 (NZ);
(d) Parts 2 and 3 of the Credit Contracts and Consumer Finance Xxx 0000
(NZ); and
Page 7
Receivables Purchase Agreement
(e) any other equivalent legislation of any Australian state or
territory or New Zealand.
CONTRACT means a contract (which need not be in writing) between the
Seller or an Approved Originator and any person under which the Seller or
the relevant Approved Originator sells goods to that person, and that
person is given a certain period of time in which to pay the relevant
purchase price, in a form or on terms acceptable to the Agent acting
reasonably, which gives rise to a Receivable.
CORPORATE EXPRESS means Corporate Express Australia Limited ABN 94 000 728
398 and its Subsidiaries.
CREDIT ADVANCE means a loan to the Company under the Enhancement Agreement
to the extent that loan relates to the funding by the Company of any
Purchased Receivables and has not been repaid to the Enhancement Bank in
accordance with the Enhancement Agreement.
CREDIT AND COLLECTION POLICY means those policies and procedures of each
Approved Originator relating to the operation of its business, including,
without limitation, the policies and procedures:
(a) for determining the creditworthiness of customers and the extension
of credit to customers;
(b) relating to the maintenance of accounts and collection of
Receivables; and
(c) relating to the writing off of bad debts,
in the form of the documents initialled by the Agent and the Seller by way
of identification (as amended from time to time as reasonably required in
the ordinary course of business or otherwise with the prior approval of
the Agent, such approval not to be unreasonably withheld or delayed), as
set out in Annexure J.
CREDIT RESERVE means, at any date, the amount calculated as follows.
CR = CRP x PR
where
CR means the Credit Reserve at that date
CRP means the Credit Reserve Percentage at that date.
PR means the Outstanding Balance of all performing Purchased
Receivables which are referable to Non-Concentration Obligors
calculated as follows:
(a) the Outstanding Balance of all Purchased Receivables less;
(b) the aggregate of:
(i) the Outstanding Balance of all Overdue Receivables;
(ii) the Outstanding Balance of all Receivables Ineligible
for Funding:
(iii) the Outstanding Balance of all Charge-Off Receivables;
and
(iv) the Outstanding Balance of all Purchased Receivables
which are referable to Concentration Obligors.
CREDIT RESERVE PERCENTAGE means, on any date, the percentage rate
calculated as the greater of:
(a) the Loss Ratio as at that date multiplied by the Loss Horizon Ratio
as at that date multiplied by the Rating Multiple at that date; and
Page 8
Receivables Purchase Agreement
(b) 5.0%.
CURRENT RECEIVABLE means any Purchased Receivable other than an Overdue
Receivable, Receivable Ineligible for Funding or Charge-Off Receivable.
DEED OF RELEASE means any Deed of Release and Consent dated on or around
the date of this agreement which irrevocably releases and discharges from
any Security Interest all of the Receivables originated by an Approved
Originator and Collections.
DEFAULT RATIO means, as at the last day of any calendar month, a
percentage calculated as follows:
COR
DR = -----
CR
where
DR means the Default Ratio at that date.
COR means the Outstanding Balance of all Purchased Receivables which
have become Charge-Off Receivables during that month.
CR means the Outstanding Balance of all Current Receivables
originated within the six-month period immediately preceding that
month.
DEFINITIONS SCHEDULE has the meaning given in the Liquidity Facility
Agreement.
DETERMINATION DATE means the 15th day of each calendar month.
DETERMINATION DATE STATEMENT means the statement prepared by the Servicer
with respect to each Determination Date pursuant to clause 6.2(b)(i)
substantially in the form of the example set out as Annexure D or in such
other form as the Agent and the Seller may agree from time to time.
DILUTION means the amount of any reduction in the Original Balance of a
Receivable other than due to payment by an Obligor in relation to that
Purchased Receivable in accordance with the terms of the related Contract
or upon the Purchased Receivable becoming a Charge-Off Receivable.
DILUTION HORIZON means a period of 30 days.
DILUTION HORIZON RATIO means, on any date, the ratio (expressed as a
decimal) calculated as of the most recent Determination Date by dividing
the aggregate sales (in Dollars) of the Seller and its Related
Corporations during the Dilution Horizon ending on such Determination Date
by the aggregate Outstanding Balance of all Purchased Receivables less the
Outstanding Balance of all Overdue Receivables of the previous Collection
Period.
DILUTION PURCHASED RECEIVABLE AMOUNT means, in respect of any Collection
Period, the aggregate amount of Dilutions made in respect of Purchased
Receivables during that Collection Period.
DILUTION RATIO means, on any date, the ratio (expressed as a decimal)
calculated as of the most recent Determination Date by dividing the
aggregate of all Dilutions for the Collection Period immediately preceding
such Determination Date (the LATEST COLLECTION PERIOD) by the aggregate
Dollar amount of sales of the Approved Originators during the Collection
Period immediately preceding the Latest Collection Period.
DILUTION RESERVE means, on any date, the amount calculated in accordance
with the following formula:
DR = (DRP x PR) + (DRP x PRCO) +PMSI
Page 9
Receivables Purchase Agreement
where:
DR means the Dilution Reserve as at that date.
DRP means the Dilution Reserve Percentage in respect of Concentration
Obligors or Non-Concentration Obligors (as the case may be) as at that
date.
PR means the Outstanding Balance of all performing Purchased Receivables
which are referable to Non-Concentration Obligors, calculated as follows:
(a) the Outstanding Balance of all Purchased Receivables, less
(b) the aggregate of:
(i) the Outstanding Balance of all Overdue Receivables;
(ii) the Outstanding Balance of all Receivables Ineligible for
Funding;
(iii) the Outstanding Balance of all Charge-Off Receivables; and
(iv) the Outstanding Balance of all Purchased Receivables which are
referable to Concentration Obligors.
PRCO means the Outstanding Balance of all Purchased Receivables which are
referable to Concentration Obligors.
PMSI means the average value of trade credits due (as determined by the
Servicer from time to time acting reasonably and notified to the Agent) to
suppliers to the NZ Approved Originators which benefit from a Supplier's
Security Interest.
DILUTION RESERVE PERCENTAGE means, on any date:
(a) in respect of Non-Concentration Obligors, the product of:
(i) the sum of:
(A) the Rating Multiple times the Adjusted Dilution Ratio;
and
(B) the Dilution Volatility Component; and
(ii) the Dilution Horizon Ratio,
expressed as a percentage; and
(b) in respect of Concentration Obligors:
(i) 5.0% ; or
(ii) the percentage notified to the Seller by the Agent in respect
of any Concentration Obligors.
DILUTION VOLATILITY COMPONENT means, on any date, the amount (expressed as
a decimal) computed as of the most recent Determination Date equal to the
product of:
(a) the difference between:
(i) the highest three month rolling average Dilution Ratio
occurring during the immediately preceding 12 months ending on
such Determination Date; and
(ii) the Adjusted Dilution Ratio as of such Determination Date,
provided that if such difference is negative it shall be
deemed to be zero, and
Page 10
Receivables Purchase Agreement
(b) a fraction, the numerator of which is equal to the amount calculated
pursuant to clause (a)(i) of this definition and the denominator of
which is equal to the amount calculated pursuant to clause (a)(ii)
of this definition.
DISCOUNT RESERVE means, on any date, the amount specified as the Discount
in the most recently delivered Sale Notice or Determination Date
Statement. The Discount shall be an amount agreed between the Seller and
the Agent (on behalf of the Company) to be an amount that relates to all
Purchased Receivables. It shall be determined using the following formula.
D = (SR + RR + PM) x (2 x DSO) x PB
---------
365
where
D means the Discount at that date
SR means the Servicer Rate as at that date
RR means the greater of:
(a) the cost (expressed as a rate per cent per annum), estimated
by the Agent, of issuing Commercial Paper to fund the
Purchased Receivables for a period equal to the Settlement
Period following that date; and
(b) the interest rate applicable to each relevant Liquidity Loan
for a period equal to the Settlement Period immediately
following that date, being the Bank Xxxx Rate as at the
commencement of that Settlement Period.
PM means the Program Margin expressed as a percentage per annum
DSO means the number which is the greater of the DSO and the
weighted average tenor of Yield Periods, as at that date
PB means the Purchase Base for the Settlement Period immediately
following that date.
DOLLARS means the lawful currency of the Commonwealth of Australia from
time to time.
DSO means days sales outstanding at that date and is calculated using the
following formula:
[(Opening AR + Closing AR) / 2] x (30 / Sales)
where
Opening AR means the opening balance of the Accounts Receivable Trial
Balance of the first day of the relevant Collection Period.
Closing AR means the closing balance of the Accounts Receivable Trial
Balance of the last day of the relevant Collection Period used to
calculate the Opening AR.
Sales means the aggregate sales (in Dollars) of the Approved Originators
in the relevant Collection Period used to calculate the Opening AR and
Closing AR.
EARLY AMORTISATION EVENT means each of the events referred to in clause
10.1 except that, so far as any such event relates to the Servicer, it
will only be an Early Amortisation Event if the Servicer is the Seller or
an Associate of the Seller.
ELIGIBLE INSURER means an insurance company regulated by the Australian
Prudential Regulatory Authority, which is either:
Page 11
Receivables Purchase Agreement
(a) rated at least A- by S&P; or
(b) a wholly owned subsidiary of an insurer rated at least A- and
approved by the Agent.
ELIGIBLE RECEIVABLE means, on the date of any determination under this
agreement which involves, or requires a calculation of, an ELIGIBLE
RECEIVABLE a Receivable:
(a) in relation to which:
(i) the Seller was the first and only creditor of the Obligor
under the relevant Contract and where that Contract was
entered into by the Seller in the ordinary course of its
business; or
(ii) an Approved Originator was the first creditor of the Obligor
under the relevant Contract, the Contract was entered into by
the Approved Originator in the ordinary course of its
business, and that Approved Originator and the Seller have
been the only creditors of the Obligor under that Contract.
(b) the Obligor of which is not an Associate or employee of the Seller
or any Approved Originator;
(c) which is not a Charge-Off Receivable;
(d) with regard to which the warranty of the Seller in each of clause
7.1(r) and (s) is true and correct;
(e) the sale of an equitable interest in which does not contravene or
conflict with any law;
(f) the Obligor of which has established a satisfactory payment history
with the Seller or an Approved Originator for a period of no less
than 1 month;
(g) where the Obligor (if a natural person) is at least 18 years old;
(h) which is:
(i) in the case of an Australian Receivable, a Receivable
denominated and payable only in Dollars in Australia; or
(ii) in the case of a NZ Receivable, a Receivable in respect of
which the Obligor is located in New Zealand or has its place
of business, or its principal place of business (if the
Obligor has more than one place of business) in New Zealand,
and the Receivable is denominated and payable only in NZ
Dollars in New Zealand;
(i) is in full force and effect and constitutes the legal, valid and
binding obligation of the Obligor of that Receivable enforceable
against that Obligor in accordance with its terms and is not subject
to any dispute, offset, counterclaim or defence whatsoever (except
the discharge in insolvency or bankruptcy of such Obligor);
(j) which, together with the Contract, does not contravene any laws,
rules or regulations and with respect to which no party to the
Contract is in violation of any law, rule or regulation if that
violation would impair the collectability of such Receivable;
(k) which satisfies all applicable requirements of the relevant Credit
and Collection Policy and any relevant Insurance Policy (provided it
is acknowledged and agreed that in respect of Insurance Policies,
the insured limit may be exceeded under and in accordance with the
relevant Credit and Collection Policy and that Eligible Receivables
may be originated
Page 12
Receivables Purchase Agreement
without being subject to an Insurance Policy under and in accordance
with the Credit and Collection Policy);
(l) as to which at the time the relevant Contract was entered into and
as at the proposed date of sale the Seller had not received any
notice of an Insolvency Event in respect of the relevant Obligor;
(m) which is not subject to any Consumer Credit Legislation;
(n) where each of the relevant Contracts is governed by the laws of an
Australian jurisdiction or, in the case of a Receivable originated
by an NZ Approved Originator, the laws of New Zealand;
(o) where the relevant Contract, if required to be stamped, has been
stamped with all applicable duty;
(p) where the amount of any payment which the Obligor is required to
make in respect of the Receivable may not pursuant to any
contractual right of set off be reduced by, or by any income derived
by the Obligor on, any moneys deposited by it with any person
(including, without limitation, the Seller) or an Approved
Originator;
(q) which is specifically identifiable and able to be segregated if an
Early Amortisation Event occurs; and
(r) which is fully assignable and is not subject to dispute, offset or
counterclaim at the time it is offered for sale.
ENHANCEMENT AGREEMENT means the Enhancement Agreement, dated on or about
the date 21 September 1994 between the Company and the Enhancement Bank.
ENHANCEMENT BANK means Westpac, or any other bank from time to time that
has an obligation (contingent or otherwise) to make advances under the
Enhancement Agreement.
EVENT OF REVIEW means a Review Event as so defined in clause 25 of the
Subscription Agreement.
EXCHANGE RATE on any date, in relation to an NZ Receivable or NZ Dollars
means:
(a) at any time prior to the occurrence of an Early Amortisation Event,
the forward exchange rate quoted to the Seller and the Company by
the Agent at that time as its market rate for converting NZ Dollars
to Dollars, or vice versa (as the case may be) for payment on the
next Remittance Date; and
(b) at any time after the occurrence of an Early Amortisation Event, the
forward foreign exchange rate under the Swap Agreement at that time
as determined by the Agent for converting NZ Dollars to Dollars, or
vice versa (as the case may be) for payment on the next Remittance
Date.
EXPIRY TIME means, in relation to a Sale Notice, 4.00 pm on the third
Business Day after the day on which the Agent receives that Sale Notice.
FEE LETTER means the letter to Xxx Xxxxxxxx dated 18 June 2004 from Xxx
Xxxxxxx, as amended thereafter by mutual agreement between the Seller and
the Agent.
FINANCIAL INDEBTEDNESS means any indebtedness, present or future, actual
or contingent in respect of moneys borrowed or raised or any financial
accommodation whatever. It includes indebtedness under or in respect of a
negotiable or other financial instrument, Guarantee, interest, gold or
Page 13
Receivables Purchase Agreement
currency exchange, hedge or arrangement of any kind, redeemable share,
share the subject of a Guarantee, discounting arrangement, finance or
capital lease, hire purchase, deferred purchase price (for more than 90
days) of an asset or service or an obligation to deliver goods or other
property or provide services paid for in advance by a financier or in
relation to another financing transaction.
FURTHER INSTALMENT means any amount requested by the Seller in accordance
with clause 2.3, or, as the context requires, withdrawn by the Seller
pursuant to that request.
FURTHER NOTICE means a notice in the form of Annexure C given under clause
2.3.
FUTURE AGREEMENT means an agreement formed between the Seller and the
Company if the Company accepts the offer made in a Sale Notice.
FX RESERVE means, on any date, the amount specified as the FX Reserve in
the most recently delivered Sale Notice or Determination Date Statement.
The FX Reserve is an amount determined on the basis of the following
formula:
NZR
FXR= (--------) x 10%
ER x 1.1
where:
FXR means the FX Reserve at that date.
NZR means the NZ Dollar equivalent of the Outstanding Balance of all NZ
Receivables at that date.
ER means the Exchange Rate to convert NZ Dollars to Dollars as advised by
the Agent.
GOVERNMENTAL AGENCY means any government or any governmental,
semi-governmental or judicial entity or authority. It also includes any
self-regulatory organisation established under statute or any stock
exchange.
GST LEGISLATION means the A New Tax System (Goods and Services Tax) Xxx
0000 or similar legislation and any related regulations.
GUARANTEE means any guarantee, indemnity, letter of credit, legally
binding letter of comfort or suretyship, or any other obligation or
irrevocable offer (whatever called and of whatever nature):
(a) to pay or to purchase;
(b) to provide funds (whether by the advance of money, the purchase of
or subscription for shares or other securities, the purchase of
assets, rights or services, or otherwise) for the payment or
discharge of;
(c) to indemnify against the consequences of default in the payment of;
or
(d) to be responsible otherwise for,
an obligation or indebtedness of another person, a dividend, distribution,
capital or premium on shares, stock or other interests, or the insolvency
or financial condition of another person.
XXXXXX XXXXXX means Xxxxxx Xxxxxx Holdings Limited ABN 54 003 237 545 and
its Subsidiaries.
INDEMNIFIED AMOUNTS means any and all damages, losses, claims, liabilities
and related costs and expenses including legal costs and expenses on a
full indemnity basis.
INDEMNIFIED PARTY means:
Page 14
Receivables Purchase Agreement
(a) the Agent;
(b) the Company;
(c) Sydney Corp;
(d) Waratah Securities;
(e) any of their respective, successors, transferees, participants and
assigns; or
(f) any officer, director, shareholder, controlling person, employee or
agent of any of the above.
INFORMATION has the meaning given in clause 18.
INPUT TAX CREDIT has the meaning given to the term under the GST
Legislation.
INSOLVENCY EVENT means in respect of a person:
(a) (i) an administrator of the person is appointed, or any step
is taken to appoint or with a view to appointing a statutory
manager (including the making of any recommendation in that
regard by the Securities Commission) under the Corporations
(Investigations and Management) Xxx 0000 (NZ);
(ii) except for the purpose of a solvent reconstruction or
amalgamation previously approved by the Agent:
(A) an application or an order is made, proceedings are
commenced, a resolution is passed or proposed in a
notice of meeting or an application to a court or other
steps are taken for:
(1) the winding up, dissolution or administration of
the person; or
(2) the person entering into an arrangement,
compromise or composition with or assignment for
the benefit of its creditors or a class of them;
other than frivolous or vexatious applications,
proceedings, notices and steps or applications which
have been dismissed within 14 days.
(B) the person ceases, suspends or threatens to cease or
suspend the conduct of all or substantially all of its
business or disposes of or threatens to dispose of
substantially all of its assets; or
(iii) the person is, or under applicable legislation is taken to be,
insolvent (other than as the result of a failure to pay a debt
or claim the subject of a good faith dispute) or stops or
suspends or threatens to stop or suspend payment of all or a
class of its debts;
(b) (i) a receiver, receiver and manager, administrative
receiver or similar officer is appointed to;
(ii) a Security Interest is enforced over; or
(iii) a distress, attachment or other execution is levied, or
enforced or applied for over,
all or any of the assets and undertaking of the person unless the
relevant action is terminated within 7 days;
Page 15
Receivables Purchase Agreement
(c) in the case of a party to this agreement, without the prior consent
of the other parties to this agreement, the person:
(i) reduces its capital (including a purchase of its shares but
excluding a redemption of redeemable shares);
(ii) passes a resolution to reduce its capital or to authorise it
to purchase its shares or a resolution under section 254N or
260B of the Corporations Xxx 0000 or an equivalent provision,
or calls a meeting to consider such a resolution; or
(iii) applies to a court to call any such meeting or to sanction any
such resolution or reduction;
(d) anything analogous to anything referred to in paragraphs (a) to (c)
inclusive, or having substantially similar effect, occurs with
respect to the person under any overseas law or any law which
commences or is amended after the date of this agreement.
INSTALMENT means:
(a) at any time in relation to an amount specified in a Sale Notice as
an Instalment, that amount; and
(b) otherwise, an amount actually paid by the Company upon its
acceptance of an offer in a Sale Notice.
INSURANCE POLICY means, in respect of a Contract, any trade credit
insurance policy or other insurance policy relating to the Contract as
provided by the Seller to the Agent and renewed on such terms as are
required in the ordinary course of business and consistent with the
provisions of the Credit and Collection Policy.
LIQUIDITY FACILITY AGREEMENT means:
(a) the Non Concentration Liquidity Facility Agreement; or
(b) the Concentration Liquidity Facility Agreement.
LIQUIDITY LOAN means a loan drawn under a Liquidity Facility Agreement.
LIQUIDITY PARTICIPANT has the meaning given in a Liquidity Facility
Agreement.
LOSS HORIZON RATIO means, as at the last day of any calendar month, a
percentage calculated as follows.
LHR = CR
---
AR
where
LHR means the Loss Horizon Ratio at that date
CR means the aggregate of Sales (as used in the definition of, and
in calculating, DSO) for that month and the previous five months.
AR means the Net Pool Balance less the aggregate of:
(a) the Outstanding Balance of all Overdue Receivables;
(b) the Outstanding Balance of all Receivables Ineligible for
Funding; and
Page 16
Receivables Purchase Agreement
(c) the Outstanding Balance of all Charge-Off Receivables.
LOSS RATIO means, at any date, the highest 3 month rolling average Default
Ratio for any month during the 12 full calendar months preceding that date
(and, where that date is the last day of the month, including that month),
expressed as a percentage.
MANDATE LETTER means the letter to Xxx Xxxxxxxx from Xxxxx Xxxxxxxx and
Xxx Xxxxx dated 25 February 2004.
MARKETABLE SECURITY has the meaning given to SECURITIES in the
Corporations Xxx 0000, but also includes:
(a) an undertaking referred to in the exceptions in paragraphs (a), (b)
and (d) of the definition of debenture in the Corporations Xxx 0000;
(b) a unit or other interest in trust or partnership
(c) a negotiable instrument; and
(d) a right or an option in respect of a Marketable Security, whether
issued or unissued, including any of the above.
MATERIAL ADVERSE EFFECT means, with respect to any event or circumstance,
a material adverse effect on:
(a) the ability of the Servicer or the Seller to perform its obligations
under any Transaction Document;
(b) the validity, enforceability or collectability of this agreement, a
Future Agreement, 10% or more of the Purchased Receivables or any
Contract relating to 10% or more of the Purchased Receivables; or
(c) the status, existence, perfection or priority of the Company's
interest in 10% or more of the Purchased Receivables.
MOODY'S means Xxxxx'x Investor Services Inc. and its affiliates.
NET POOL BALANCE means, at any time, an amount equal to the aggregate of
the Outstanding Balance of all Purchased Receivables at that time.
NON CONCENTRATION LIQUIDITY FACILITY AGREEMENT means the liquidity
facility agreement dated on or about the date of this agreement between
the Company, as borrower, Westpac as Servicing Agent for the Company and
as Liquidity Agent, and the Liquidity Participants entered into in
connection with this agreement.
NON-CONCENTRATION OBLIGORS means Obligors who are not Concentration
Obligors.
NON-RECEIVABLES BANK ACCOUNT means a bank account owned and controlled by
the Seller or an Approved Originator which is not a Collection Account.
NZ APPROVED ORIGINATOR means Tech Pacific (N.Z.) Limited or any other New
Zealand incorporated subsidiary of the Seller that the Agent approves of
as an NZ Approved Originator from time to time.
NZ COLLECTION ACCOUNT means the account in the name of Tech Pacific (N.Z.)
Limited with Account Number [Intentionally omitted] or such other account
approved by the Agent.
NZ DOLLARS means the currency of New Zealand.
Page 17
Receivables Purchase Agreement
NZ ORIGINATOR POWER OF ATTORNEY means a power of attorney entered into by
a NZ Approved Originator substantially in the form set out in Annexure G.
NZ RECEIVABLE means a Receivable originated by an NZ Approved Originator
excluding any right to payment of interest, finance or late payment
charges payable by the relevant Obligor in respect of that Receivable.
OBLIGOR means a person obligated to make payments in respect of a
Receivable.
ORIGINAL BALANCE means, at the time, a Purchased Receivable is offered for
sale, the then unpaid amount payable (whether actually or contingently)
under that Receivable.
ORIGINATOR GUARANTEE means a Guarantee by the Approved Originators of the
obligations of the Seller and the Servicer under this agreement.
OUTSTANDING BALANCE means, at any time, in relation to:
(a) any Purchased Receivable, the amount then owing and unpaid (whether
or not then due and payable) under the Purchased Receivable;
(b) any NZ Receivable, the amount then owing and unpaid (whether or not
then due and payable) under the Purchased Receivable converted into
Dollars at the applicable Exchange Rate at that time; and
(c) any Receivable Ineligible for Funding, the amount recorded in the
Accounts Receivable Trial Balance in respect of that Receivable
Ineligible for Funding.
OVERDUE RECEIVABLE means a Purchased Receivable (other than any Receivable
Ineligible for Funding or Charge-Off Receivable) that remains unpaid for
more than 60 days past the due date for payment of that Purchased
Receivable.
PERMITTED SECURITY INTEREST means any Security Interest created in favour
of the Seller or the Company by virtue of either:
(a) the transfer of NZ Receivables by the NZ Approved Originator to the
Seller; or
(b) the transfer of NZ Receivables by the Seller to the Company.
PERSONAL INFORMATION means any personal information in relation to an
Obligor as that term is defined in the Privacy Xxx 0000 that is provided
to the Company or the Agent.
POOL OF RECEIVABLES means all of the Receivables referred to in any one
Sale Notice or Further Notice.
POTENTIAL EARLY AMORTISATION EVENT means any event which, with the giving
of notice or lapse of time, or both, would become an Early Amortisation
Event.
PPSA means the Personal Property Securities Xxx 0000 (NZ).
PPSR means the Personal Property Securities Register established by the
PPSA.
PREPAYMENT AMOUNT means, on any date, an amount (reasonably determined by
the Agent) to be the aggregate of:
(a) the Program Margin multiplied by the Company's Investment until the
Company's Investment has been fully and finally repaid; and
Page 18
Receivables Purchase Agreement
(b) the projected amount of any Unused Limit Fee Amount which will be
payable by the Seller to the Company on the basis that the Company's
Investment is $0 for the period commencing on the expected date the
Company's Investment becomes $0 and ending on the date which is the
anniversary immediately following the Commitment Termination Date or
as agreed between the Seller and the Agent in the Fee Letter. It
excludes the amount of any Program Margin which has not yet accrued.
PROGRAM CHANGE means any change in, any making of, or any change in the
interpretation or application of, or compliance with any change in, any
law, official directive or request. A Program Change includes:
(a) any law, official directive or request with respect to taxation (but
not including changes in respect of Taxes upon or measured by net
income or capital gain) or reserve, liquidity, capital adequacy,
special deposit or similar requirements; and
(b) any official directive or request of the Reserve Bank of Australia,
APRA or any other Governmental Agency which does not have the force
of law where it is the practice of responsible persons in the
position of the Company, Waratah Securities or Sydney Corporation to
comply with it.
PROGRAM COSTS means, for any Remittance Date, the amount which the Agent
certifies in good faith is necessary to compensate the Company, Waratah
Securities or Sydney Corp for the relevant Collection Period for:
(a) any cost attributable to goods and services or similar tax that the
Company, Waratah Securities or Sydney Corp incurs an obligation to
pay in respect of any payment under any Related Agreement, reduced
by any Input Tax Credit or Reduced Input Tax Credit to which the
Company, Waratah Securities or Sydney Corp is entitled in respect of
that payment; or
(b) any of the following as a result of a Program Change:
(i) any reduction, direct or indirect, in the amount of any
payment made or payable by or for the account of the Company,
Waratah Securities or Sydney Corp or received by any of them
in connection with this agreement or any Future Agreement;
(ii) any reduction, direct or indirect, in the effective return of
the Company, Waratah Securities or Sydney Corp in connection
with this agreement or any Future Agreement (other than any
reduction as a result of an increase in amounts payable by the
Company, Waratah Securities or Sydney Corp to another person
as a result (direct or indirect) of any change of the rate of
GST); or
(iii) any imposition, direct or indirect, of any cost on the
Company, Waratah Securities or Sydney Corp as a result of its,
or their, participation in the transactions contemplated by
any Transaction Document including, without limitation, its
funding any purchase of any Purchased Receivables (other than
any cost arising (directly or indirectly) as a result of any
change in the rate of GST),
which reduction or cost occurs, is incurred or first calculated in or in
respect of that Collection Period. If the increased cost or reduction is
indirect, the Program Cost is the proportion which the Agent reasonably
determines to be fairly attributable to the purchase of any Purchased
Receivables under this agreement.
Page 19
Receivables Purchase Agreement
The Program Costs:
(A) include any increased cost or reduction which arises because
the Company, Waratah Securities or Sydney Corp is restricted
in its capacity to enter into other transactions, or is
required to make a payment, or forgoes or earns reduced
interest or other return on any capital or any sum calculated
by reference in any way to the amount of any amount paid or
payable or received or receivable under any Transaction
Document or allocates capital to any such sum; but
(B) exclude any amount which was caused solely and directly by the
Company permitting Sydney Corp to issue Commercial Paper Notes
in the US commercial paper market at a time when the Company
actually knows or ought to know that payments in respect of
those Commercial Paper Notes (or the related payments under
the SPV Loan Agreement between the Company and Sydney Corp)
will be liable to Australian interest withholding tax.
PROGRAM MARGIN means the percentage per annum referred to in the Fee
Letter, as amended thereafter by mutual agreement between the Seller and
the Agent.
PROGRAM OUTSTANDINGS means on any date the sum of:
(a) the Dollar amount of the proceeds received under the relevant SPV
Loan Agreement by, or on behalf of, the Company from the issue of
Commercial Paper Notes by Waratah Securities; and
(b) the Dollar equivalent of US dollar proceeds received under the
relevant SPV Loan Agreement by, or on behalf of, the Company from
the issue of Commercial Paper Notes by Sydney Corp,
which on that date are on issue and not due to be repaid on that date,
provided that the Program Outstandings at any time will not exceed the
Company's Investment at that time.
The Dollar equivalent of an amount on any date is calculated on that date
at the spot exchange rate which was used to exchange the US dollar
proceeds into Dollars.
PURCHASE means the purchase made under a Future Agreement upon acceptance
of the offer in a Sale Notice given in accordance with this agreement (if
the offer in that Sale Notice is accepted).
PURCHASE BASE at any time means the sum of the Outstanding Balance of all
Purchased Receivables and Total Insurance Recoveries as at the immediately
preceding Determination Date, less the aggregate amount of:
(a) the Required Reserve at that time;
(b) the Outstanding Balance of all Overdue Receivables as at that
Determination Date;
(c) the Outstanding Balance of all Receivables Ineligible for Funding as
at that Determination Date; and
(d) the Outstanding Balance of all Charge-Off Receivables as at that
Determination Date.
PURCHASE DATE means the Business Day on which the Agent receives a Sale
Notice or Further Notice from the Seller.
Page 20
Receivables Purchase Agreement
PURCHASE LIMIT means $200,000,000, as reduced under clause 2.8, or as
otherwise agreed by the Seller, the Company and the Agent.
PURCHASED INTEREST means on any date, the percentage calculated as
follows.
PI=CI
--
PB
Where
PI means the Purchased Interest as at that date
CI means the Company's Investment as at that date
PB means the Purchase Base as at that date
PURCHASED RECEIVABLE means any Receivables and Related Agreements which
are offered for sale by the Seller in a Sale Notice accepted by the
Company, including those Receivables and Related Agreements that are
identified in a Computer Disk or ledger subsequently given by the Seller
to the Company pursuant to the Future Agreement formed upon the acceptance
of the offer in that Sale Notice.
RATING AGENCY means Moody's and/or S&P (as applicable).
RATING MULTIPLE means 2.25, or such other multiple as is agreed between
the Company, the Agent and the Seller and affirmed by the Rating Agencies.
RECEIVABLE means any right, title, benefit and interest (present or
future) in, to, under or derived from a Contract, including the purchase
price payable under that Contract but excluding, in the case of any
Contract originated by an NZ Approved Originator, any right to payment of
interest, finance or late payment charges payable under that Contract.
RECEIVABLES INELIGIBLE FOR FUNDING means any Purchased Receivables or
other items which are noted in the Accounts Receivable Trail Balance as
being "Delinquent", "HIH", "Other specific", "Legals", "Pre legal /
payment plans", "Inter co / other" and "VEMS" (other than any Overdue
Receivable or Charge-Off Receivable).
REDUCED INPUT TAX CREDIT means an Input Tax Credit for a reduced credit
acquisition (as defined in the GST Legislation).
RELATED AGREEMENT means any Guarantee, mortgage, charge, encumbrance,
lien, trade credit insurance policy or other agreement or arrangement of
whatever character from time to time supporting or securing payment of
each Receivable whether pursuant to any Contract related to such
Receivable or otherwise and, in respect of a Receivable, includes the
rights of the Seller under the Approved Originator Sale Notice for the
relevant Approved Originator in relation to that or otherwise, but does
not include:
(a) a Guarantee facility deed or chattel mortgage given by an Obligor
where that deed or mortgage is expressed to secure obligations of
the Obligor in addition to a Receivable; or
(b) any Guarantee, mortgage, charge, encumbrance, lien or other
agreement or arrangement where the relevant Obligor is resident in
Queensland, or the property the subject thereof is situated in
Queensland, or where a transfer of it by means of a Future Agreement
would be subject to ad valorem stamp duty.
Page 21
Receivables Purchase Agreement
RELATED CORPORATION has the meaning given to RELATED BODY CORPORATE in the
Corporations Xxx 0000.
REMITTANCE DATE means:
(a) the 25th day of each month or as otherwise agreed between the Agent
and the Seller; or
(b) if an Early Amortisation Event has occurred and is subsisting , such
other date or dates selected by the Agent, notice of which is given
to the Servicer.
REQUIRED RESERVE means on any date, the amount equal to the aggregate of:
(a) the Discount Reserve;
(b) the Credit Reserve;
(c) the Dilution Reserve;
(d) the Concentration Reserve; and
(e) the FX Reserve,
calculated with reference to the data notified to the Company in the Sale
Notice or the most recent Determination Date Statement.
For the avoidance of doubt, the minimum amount of the Required Reserve
excluding the Concentration Reserve is at least 15% of the Outstanding
Balance of all performing Purchased Receivables which are referable to
Non-Concentration Obligors, calculated as follows:
(a) Outstanding Balance of all Purchased Receivables, less
(b) the aggregate of:
(i) the Outstanding Balance of all Overdue Receivables;
(ii) the Outstanding Balance of all Receivables Ineligible for
Funding;
(iii) the Outstanding Balance of all Charge-Off Receivables; and
(iv) the Outstanding Balance of all Purchased Receivables which are
referable to Concentration Obligors.
RESERVE means the Credit Reserve, the Dilution Reserve, the Discount
Reserve, the Concentration Reserve, or the FX Reserve as they relate to
the Required Reserve.
RETENTION AMOUNT means, for any Remittance Date, the sum of each amount
calculated for each day during the relevant Yield Period on the basis of
the following formula:
(a) the Company's Investment on that day multiplied by the Program
Margin multiplied by 1/365, plus
(b) to the extent that the Company's Investment is less than 80% of the
Purchase Base, the difference between the Purchase Base and the
Company's Investment on that day multiplied by the Unused Limit Fee
multiplied by 1/365.
RPA COMMITMENT means the Company's obligation to purchase Receivables
under any Future Agreement.
S&P means Standard and Poor's Ratings Group.
Page 22
Receivables Purchase Agreement
SALE NOTICE means a notice substantially in the form of Annexure A Part 1
or in such other form as the Company and the Seller may agree but
otherwise complying with clause 2.1.
SCHEDULED COMMITMENT TERMINATION DATE means 26 June 2008.
SECURITY AGENT has the same meaning given in the Definitions Schedule.
SECURITY INTEREST includes any mortgage, pledge, lien or charge or any
security or preferential interest or arrangement of any kind or any other
right of, or arrangement with, any creditor to have its claims satisfied
in priority to other creditors with, or from the proceeds of, any asset in
favour of any person other than the Seller, and in the case of any NZ
Receivable, any security interest (as defined and construed in accordance
with the PPSA).
It includes retention of title other than in the ordinary course of
day-to-day trading and a deposit of money by way of security but it
excludes a charge or lien arising in favour of a Governmental Agency by
operation of statute unless there is default in payment of moneys secured
by that charge or lien.
SELLER'S AGENT means Tech Pacific Holdings Pty Limited.
SELLER'S INTEREST means at any time the difference between 100% and the
Purchased Interest at that time.
SERVICER means the person designated as the Servicer under each Future
Agreement from time to time in accordance with clause 9.1.
SERVICER AMOUNT means, on any date, an amount calculated as follows:
D
SA = SR x CI x ---
365
where
SA means the Servicer Amount on that date
SR means the Servicer Rate at that date
CI means the Company's Investment as at that date
D means the number of days from the commencement of the Yield Period
in which that date falls to that date
SERVICER FEE means (if at any time the Servicer is not the Seller), on any
date, the amount of any fee due and payable to the Servicer with respect
to its servicing role as at that date.
SERVICER RATE means, at any date, the estimated percentage rate
representing the cost of employing a Successor Servicer at that date,
being:
(a) at the date of this agreement, 1%; and
(b) at any later date, any other percentage agreed by Westpac and the
Seller to represent that cost and which has been agreed to by the
Seller's independent auditors and affirmed by the Rating Agencies.
SERVICER TRANSFER EVENT means any of the events specified in clause 10.1
so far as they relate to the Servicer.
SETTLEMENT PERIOD means, in relation to any Purchased Receivables, the
period specified as such in the Sale Notice (or agreed by the Agent and
the Seller from time to time) for those Purchased
Page 23
Receivables Purchase Agreement
Receivables, being the period which would commence on the date of the
Purchase of the relevant Purchased Receivables and which equals the DSO
calculated on that date.
However, any Settlement Period which would otherwise end on a day that is
not a Business Day will end on the next succeeding Business Day.
SPV LOAN AGREEMENT means:
(a) the loan agreement between the Company and Sydney Corp dated 21
September 1994; or
(b) the loan agreement between the Company and Waratah Securities dated
28 November 1995.
SUBSCRIPTION AGREEMENT means the agreement between Techpac Holdings
Limited, UBS Capital Markets Australia Limited, UBS Australia Limited, UBS
Nominees Pty Limited and other dated 26 June 2003, as amended.
SUBSIDIARY has the meaning in the Corporations Xxx 0000.
SUCCESSOR NOTICE means a notice from the Agent to the Seller appointing a
new Servicer for the purpose of each Future Agreement in accordance with
clause 9.3.
SUCCESSOR SERVICER means a new Servicer appointed under clause 9.3.
SUPPLIER'S SECURITY INTEREST means any Security Interest in favour of a
supplier to a NZ Approved Originator in respect of which any Purchased
Receivable constitutes proceeds of any goods so originally supplied to
that NZ Approved Originator by that supplier, and includes any such
Security Interest subsequently transferred by that supplier to another
person.
SWAP AGREEMENT means the ISDA Master Agreement, Schedule and confirmation
between Westpac and the Company relating to exchange of NZ Dollars and
Dollars under the transactions contemplated under this agreement pursuant
to clause 10.3 to enable the Company to hedge its exposure to NZ Dollars
for expected receipts in NZ Dollars.
SYDNEY CORP means Sydney Capital Corporation, Inc., a Delaware
incorporated company.
TAX includes any tax (including under the GST Legislation), levy, impost,
deduction, charge, rate, duty, compulsory loan or withholding which is
levied or imposed by a Governmental Agency, and any related interest,
penalty, charge, fee or other amount but excludes income tax.
TOTAL INSURANCE RECOVERIES means the amount equal to the aggregate of all
payments received under Insurance Policies in respect of Purchased
Receivables.
TRANSACTION DOCUMENT means:
(a) this agreement;
(b) any Future Agreement;
(c) the Originator Guarantee;
(d) any Approved Originator Sale Notice from an Approved Originator to
the Seller or any Sale Notice;
(e) the Swap Agreement;
(f) the Deeds of Release;
Page 24
Receivables Purchase Agreement
(g) any other document entered into by the Seller or the Servicer (for
so long as the Servicer is the Seller or an Associate of the Seller)
and an Indemnified Party arising out of or related to this
agreement, any Future Agreement, or the ownership or funding of any
Purchased Receivables or in respect of any Receivable or Contract;
(h) a document or agreement entered into or provided by the Seller or
the Servicer (for so long as the Servicer is the Seller or an
Associate of the Seller) under or in connection with, or for the
purpose of amending or novating any of the above; or
(i) any other document or agreement entered into by the Company or the
Agent and any successor Servicer appointed under clause 9.3 in
relation to any of the above.
UNUSED LIMIT FEE means the percentage per annum referred to in the Fee
Letter, as amended from time to time by mutual agreement between the
Seller and Westpac.
UNUSED LIMIT FEE AMOUNT means for any day that an Unused Limit Fee is
applied, the product of:
(a) $150,000,000;
(b) the Unused Limit Fee; and
(c) 1/365.
WARATAH SECURITIES means Waratah Securities Australia Limited.
WOOLWORTHS means Woolworths Limited ACN 000 014 675 and its Subsidiaries.
YIELD PERIOD means with respect to any Purchased Receivables:
(a) the period which commences on the date of the Purchase of a
Receivable and ending on the Remittance Date set out in the relevant
Sale Notice (or such other period as agreed by the Agent); and
(b) after the initial period, each period which commences on the last
day of the immediately preceding Yield Period and ending on the next
Remittance Date (or such other period as agreed by the Agent);
however,
(c) any Yield Period which would otherwise end on a day that is not a
Business Day will end on the next succeeding Business Day; and
(d) any Yield Period which commences before the Commitment Termination
Date and would otherwise end after the Commitment Termination Date,
shall end on the Commitment Termination Date and each subsequent
Yield Period for such Purchased Receivables will be of a duration
selected by the Agent,
provided that no Yield Period will exceed 100 days.
1.2 INTERPRETATION
In this agreement the following rules apply unless the context requires
otherwise.
(a) The singular includes the plural and the converse.
(b) A gender includes all genders.
(c) Where a word or phrase is defined, its other grammatical forms have
a corresponding meaning.
Page 25
Receivables Purchase Agreement
(d) Headings are for convenience only and do not affect interpretation.
(e) A reference to a person, corporation, trust, partnership,
unincorporated body or other entity includes any of the foregoing.
(f) A reference to a clause, annexure or Schedule is a reference to a
clause of, or annexure or schedule to, this agreement containing
that reference.
(g) A reference to a party to this agreement or another agreement or
document includes the party's successors and permitted substitutes
or assigns.
(h) A reference to an agreement or document is to the agreement or
document as amended, novated, supplemented or replaced from time to
time, except to the extent prohibited by this agreement.
(i) A reference to legislation or to a provision of legislation includes
a modification or re-enactment of it, a legislative provision
substituted for it and a regulation or statutory instrument issued
under it.
(j) A reference to WRITING includes a facsimile transmission and any
means of reproducing words in a tangible and permanently visible
form.
(k) A reference to conduct includes, without limitation, an omission,
statement or undertaking, whether or not in writing.
(l) A reference to an ASSET includes any real or personal, present or
future, tangible or intangible property or asset and any right,
interest, revenue or benefit in, under or derived from the property
or asset.
(m) A reference to liquidation includes appointment of an administrator
under Part 5.3A of the Corporations Xxx 0000, compromise,
arrangement, merger, amalgamation, reconstruction, winding up,
dissolution, assignment for the benefit of creditors, scheme,
composition or arrangement with creditors, insolvency, bankruptcy or
a similar procedure or, where applicable, changes in the
constitution of any partnership or person or death.
(n) A reference to time is a reference to Sydney time.
(o) Mentioning anything after INCLUDE, INCLUDES or INCLUDING does not
limit what else might be included.
(p) In clauses 2.4-2.7, the expressions 'account receivable', 'chattel
paper', 'financing statement', 'new value', 'personal property',
'possession', 'proceeds', 'purchase money security interest',
'secured party', 'security interest' and 'transfer' have the
respective meanings given to them under, or in the context of, the
PPSA.
2. RPA COMMITMENT
2.1 SALE NOTICES
(a) Before delivering a Sale Notice, the Seller's Agent shall contact
the Agent to discuss the proposed Purchase Base, the proposed
Company's Investment, the proposed Instalment, the proposed
Reserves, the proposed Settlement Period and the proposed Yield
Period.
Page 26
Receivables Purchase Agreement
(b) Subject to clauses 2.1(e) and 6 the Seller may offer to sell a Pool
of Receivables and the Related Agreements from time to time to the
Company by delivering a Sale Notice to the Company during the period
from the date of this agreement to the Commitment Termination Date.
A Sale Notice must relate to all Receivables at the relevant date.
(c) Any Sale Notice given under this agreement shall (unless otherwise
agreed by the parties in writing) be delivered to the Company not
later than 11:00 a.m. on the third Business Day before the date of
the proposed Purchase (which must also be a Business Day). Each Sale
Notice shall annex to it an Accounts Receivable Trial Balance and
shall:
(i) specify the proposed Purchase Date, Remittance Date,
Settlement Period and Yield Period;
(ii) specify the then Outstanding Balance of the Pool of
Receivables offered for purchase that will apply if that Sale
Notice is accepted;
(iii) specify the proposed Instalment which would be payable by the
Company in respect of the Pool of Receivables so offered for
purchase if the Company were to accept the Seller's offer as
contained in the Sale Notice;
(iv) specify the Company's Investment that will apply if that Sale
Notice is accepted;
(v) specify the Reserves that will apply if that Sale Notice is
accepted;
(vi) specify the Net Pool Balance and Purchased Interest that will
apply if that Sale Notice is accepted; and
(vii) specify such other information as required in clause 4 of any
Sale Notice.
(d) The Seller shall certify in a Sale Notice whether or not the limit
in clause 2.2 would be breached if the Company purchased the Pool of
Receivables described in that Sale Notice.
(e) An offer in a Sale Notice is irrevocable during the period up to and
including the Expiry Time of that Sale Notice.
(f) The Seller is not obliged to offer for sale to the Company any
Receivables and related rights, and the Company is not obliged to
accept any offer for sale of any Receivables and Related Agreements
made by the Seller. The Company will however act reasonably in
considering whether to accept a Sale Notice.
(g) The Company may accept the offer contained in a Sale Notice at any
time prior to the Expiry Time by, and only by, the payment by the
Company to the Seller (or as it directs) of the Instalment in the
manner described in clause 2.1(i). Upon receipt of a Sale Notice, if
the Company decides not to accept that Sale Notice it will notify
the Seller's Agent orally of that decision within 24 hours of
receipt of that Sale Notice.
(h) Notwithstanding satisfaction of all relevant conditions precedent or
any negotiations undertaken between the Seller's Agent and the
Company prior to the Company accepting the offer contained in a Sale
Notice, the Company is not obliged to accept the offer contained in
a Sale Notice and no contract for the sale or purchase of any
Receivables or Related Agreements detailed in a Sale Notice will
arise unless and until the Company accepts the offer contained in
the Sale Notice in accordance with this clause. The offer contained
in a Sale Notice may only be accepted in relation to all the
Receivables detailed in the Sale Notice.
Page 27
Receivables Purchase Agreement
(i) If the Company wishes to accept a Sale Notice in the manner
specified in clause 2.1(g), it will (unless another method of
payment is agreed between the Seller and the Company) make payment
of the Instalment (being a non-refundable payment representing part
of the purchase price for the Purchased Receivables) as specified in
the Sale Notice on the Purchase Date in Dollars in immediately
available funds to such bank account in Australia as the Seller may
specify in writing.
(j) If the offer contained in a Sale Notice is accepted, the Company
shall be taken to have undertaken to the Seller to pay to the Seller
as further consideration for the purchase of the Purchased
Receivables:
(i) an amount equal to the Collections allocated under clause
4.1(b)(ii) in respect of the Purchased Receivables; and
(ii) an amount equal to any Collections under clause 4.1(c)(v) in
respect of the Purchased Receivables.
(k) Nothing in clauses 2.1(j) or 4.2 or any other provision of any
Transaction Document confers on the Seller any right or interest in
any Receivable, Related Agreement or Collections (other than in each
case as trustee), each party acknowledging that no Security Interest
arises from a Purchase (other than a Permitted Security Interest, if
any) and that each Purchase constitutes an equitable assignment that
is absolute and not by way of security (other than a Permitted
Security Interest).
(l) Subject to this agreement, the purchase price for the Purchased
Receivables shall be an amount equal to their Outstanding Balances.
The purchase price shall be satisfied by the payment of the
Instalments, the Further Instalments, and the Seller's Interest in
Collections and release of the Reserves to the Seller in accordance
with clause 4. The Seller's Interest is a means by which the parties
determine the share of Collections to which the Seller is entitled
as part of the deferred purchase price. It does not constitute an
equitable interest in the Purchased Receivables.
2.2 LIMIT
Under no circumstances shall the Company make a Purchase or pay an
Instalment or Further Instalment to the extent that, after giving effect
to the Purchase or paying the Instalment or Further Instalment, the
Company's Investment would exceed the lesser of:
(a) the Purchase Limit; and
(b) the Purchase Base.
2.3 FURTHER INSTALMENTS
(a) The Seller shall be entitled to request payments from the Company
(either from the relevant Collection Accounts or other applicable
accounts) not more than once a week in an amount (a FURTHER
INSTALMENT) not exceeding the amount equal to the Purchase Base less
the Company's Investment.
(b) The Reserves shall not be recalculated between Remittance Dates for
the purposes of determining the entitlement of the Seller to Further
Instalments.
(c) The Seller may only request a Further Instalment if:
Page 28
Receivables Purchase Agreement
(i) the conditions precedent in clause 6.2 are satisfied; and
(ii) it has given to the Agent a FURTHER NOTICE in the form of
Annexure C and satisfied the Agent it is entitled to request
the Further Instalment.
(d) Subject to clause 2.3(c),
(i) NZ Collections can be paid to the NZ Approved Originator on
account for the Seller, up to the amount of the Outstanding
Balance of NZ Receivables that have been originated since the
immediately preceding Instalment or Further Instalment was
paid; and
(ii) Collections in Dollars can be paid to the Australian Approved
Originator or the Seller, up to the amount of the Outstanding
Balance of Australian Receivables that have been originated
since the immediately preceding Instalment or Further
Instalment was paid.
2.4 SECURITY INTEREST
In respect of any NZ Receivable that is transferred to the Company under
and in accordance with a Future Agreement, the parties agree and
acknowledge that:
(a) the transfer is a deemed security interest under the PPSA governed
by the PPSA, which arises by virtue of the transfer to the Company
of that NZ Receivable by the Seller under and in accordance with a
Sales Notice;
(b) the purchase agreements contemplated by each Sale Notice are
intended to operate so that the Seller and the Company will at all
times be able to prove that, in respect of each relevant NZ
Receivable that is an account receivable, the sale in equity of that
NZ Receivable constitutes a transfer for which new value was
provided by the Company for and in respect of the acquisition of
that NZ Receivable; and
(c) the security interest referred to in clause 2.4(a) will have been
perfected by the registration of a financing statement on the PPSR
against the Seller in respect of all of the Seller's present and
after acquired accounts receivable, chattel paper and other present
and after acquired personal property that are Purchased Receivables;
(d) nothing in clauses 2.4-2.6, or anything else in or contemplated by
the Transaction Documents, is intended to create or imply that the
sale of any Receivable under a Future Agreement is anything other
than an absolute assignment of the Seller's rights and interest in
those Receivables to the Company. In particular, it is not a secured
or unsecured loan.
2.5 REGISTRATION ON PPSR
(a) The Seller agrees and acknowledges that, in relation to NZ
Receivables to be transferred from the Seller to the Company, the
Company will register a financing statement in relation to the NZ
Receivables under the PPSA:
(i) describing the collateral to which it relates as 'All of the
debtor's present and after acquired accounts receivable,
chattel paper and any other present and after acquired
personal property being "Purchased Receivables" as defined in
the Receivables Purchase Agreement between the debtor, Waratah
Receivables Corporation Pty Limited and Westpac Banking
Corporation dated 21 June 2004';
Page 29
Receivables Purchase Agreement
(ii) describing the proceeds of that collateral as 'All present and
after acquired personal property being proceeds of the
collateral described in this financing statement'; and
(iii) with the secured party group being the Company and the debtor
being the Seller.
2.6 PPSA PROVISIONS
(a) PART 9 PROVISIONS: The parties to this agreement acknowledge that it
is their intention that the provisions contained in Part 9 of the
PPSA do not apply to the NZ Receivables transferred to the Company
pursuant to a Future Agreement. However, if at law this is not the
case and in respect of any other security interest created by this
agreement:
(i) any power to sell any of the NZ Receivables, whether conferred
by this agreement or otherwise, may be exercised without the
need to give the Seller any notice of the kind that is
referred to in section 114 of the PPSA and, if any of the NZ
Receivables are sold at any time, the Company is not required
to give the statement referred to in section 116 of the PPSA;
and
(ii) the Seller acknowledges that it is not entitled by section 117
of the PPSA except to the extent otherwise provided by this
agreement to any surplus amounts which may result from any
sale at any time.
(b) VERIFICATION STATEMENT: The Seller waives the right to receive a
copy of the verification statement confirming registration of a
financing statement or financing change statement relating to the
security interest under this agreement.
2.7 EXTENSION
(a) (SCHEDULED COMMITMENT TERMINATION DATE)
(i) If the Seller wants an extension of the Scheduled Commitment
Termination Date, it shall give a written request to the Agent
by 26 June 2007 or as otherwise agreed between Seller and
Agent. If the Company agrees, it shall give a written notice
of acceptance to the Seller 60 days after the request has been
delivered to the Agent.
(ii) The Scheduled Commitment Termination Date may be extended by
the Company for a further period if it is satisfied with the
proposed fees and margins.
(b) (CONCENTRATION TERM)
(i) If the Seller's Agent wants an extension of the Concentration
Term in respect of a Concentration Obligor on the first or any
subsequent anniversary of this agreement it shall give a
written request to the Agent at least 60 days before the
relevant anniversary.
(ii) If requested by the Seller's Agent to do so, the Agent shall
procure that the Concentration Term is extended by the
relevant Liquidity Participants on the first or any subsequent
anniversary of this agreement for a further period of one year
or such longer period if they are satisfied with the proposed
fees and margins.
2.8 VOLUNTARY TERMINATION OF RPA COMMITMENT OR REDUCTION OF PURCHASE LIMIT
Subject to clause 5.4, the Seller may, upon at least five Business Days'
notice to the Agent, terminate the RPA Commitment in whole or reduce in
part the unused portion of the Purchase Limit, however:
Page 30
Receivables Purchase Agreement
(a) each partial reduction shall be in an amount equal to $5,000,000 or
an integral multiple of $5,000,000; and
(b) after giving effect to such reduction, the remaining Purchase Limit,
in accordance with this agreement, will not be less than
$10,000,000.
2.9 LIQUIDITY AVAILABILITY
(a) The Company will consider for acceptance, in accordance with this
agreement, any Sale Notice if:
(i) the Commitment Termination Date has not occurred; and
(ii) to the extent that the Company is able to draw amounts under
the Liquidity Facility Agreements equal to the relevant
Instalment.
(b) The Agent and the Company represent and warrant to the Seller that
under the Liquidity Facility Agreements funds may be drawn down to
fund the acquisition of Receivables by the Company. The Company
shall not be obliged to draw down under the Liquidity Facility
Agreements if it is able to drawdown under a SPV Loan Agreement.
(c) The Agent and the Company represent and warrant to the Seller that
the term of the commitment under the Non Concentration Liquidity
Facility Agreement shall be 2 years from the date the Non
Concentration Liquidity Facility Agreement is signed, and that term
of commitment can be extended on an annual basis as agreed between
the parties to the Non Concentration Liquidity Facility Agreement.
2.10 SELLER OBLIGATIONS UPON RPA TERMINATION
Subject to clause 3.3, and provided that all amounts actually or
contingently owed to the Company by the Seller and the Servicer (in the
case of the Servicer, whilst the Servicer is the Seller or an Associate of
the Seller) under the Transaction Documents have been paid in full and all
outstanding obligations of the Seller and the Servicer (in the case of the
Servicer, whilst the Servicer is the Seller or an Associate of the Seller)
under the Transaction Documents have been fulfilled, the Seller and the
Servicer (in the case of the Servicer, whilst the Servicer is the Seller
or an Associate of the Seller) shall have no further obligations under the
Transaction Documents following the termination of the RPA Commitment in
whole and any remaining interest of the Company in the Receivables is
extinguished.
2.11 COMMERCIAL PAPER NOTES
The Company must ensure that it will not enter into a loan under a SPV
Loan Agreement in relation to the Outstanding Balance of Purchased
Receivables where the interest payable in relation to the Yield Period for
that loan exceeds the Discount Reserve calculated with respect to the
first day of that Yield Period.
2.12 APPOINTMENT OF SELLER'S AGENT
Each Approved Originator appoints Tech Pacific Holdings Pty Limited to act
as its agent (the "Seller's Agent") and Tech Pacific Holdings Pty Limited
has accepted this appointment in respect of:
(a) furnishing all requirements to the Company and the Agent as
requested; and
(b) fulfilling all of its obligations and responsibilities pursuant to
this Agreement.
Page 31
Receivables Purchase Agreement
The Company and the Agent are entitled to assume that the appointment of
the Seller's Agent hereunder is valid and subsisting, unless and until
expressly notified in writing that the appointment has been terminated.
3. COLLECTION
3.1 COLLECTION OF RECEIVABLES
(a) On each day the Servicer receives payment from an Obligor on account
of Purchased Receivables included in the Purchase Base, the Servicer
shall receive those payments on behalf of the Company and shall
deposit each payment into the relevant Collection Account in
accordance with the terms of the relevant Collection Account Letter;
(b) The Servicer undertakes:
(i) that on each day the Seller, the Servicer or an Approved
Originator receives a payment from an Obligor on account of
Receivables included in the Purchase Base and such a payment
represents a Collection it receive those payments on behalf of the
Company; and
(ii) that each Collection will be deposited into the relevant
Collection Account in accordance with the terms of the relevant
Collection Account Letter.
(c) Pursuant to the Collection Account Letter, on each Business Day and
subject to an Early Amortisation Event not subsisting, amounts
standing to the credit of the Collection Account may be remitted to,
and applied by, the Seller or any Approved Originator at the Seller or
the Approved Originator's discretion. The Servicer will account for
all remittances from the Collection Account during the Collection
Period, to the Company and the Agent, on the relevant Remittance Date
that follows a Collection Period.
3.2 DEEMED COLLECTIONS
(a) Subject to paragraph (e), for the purposes of this agreement:
(i) if on any day the Outstanding Balance of any Purchased
Receivable is:
(A) reduced or adjusted as a result of any defective,
rejected, repossessed or returned goods or services
or any cash discount or other adjustment made by the
Seller;
(B) reduced or cancelled as a result of a set off or by
agreement in respect of any claim by the Obligor or
any other person against the Seller, an Approved
Originator or any other person (whether such claim
arises out of the same or another transaction); or
(C) not paid because of any change in the due date for
payment of any such Purchased Receivable otherwise
than with the prior consent of the Company,
the Seller will be deemed to have received on such day a
Collection of such Purchased Receivable in the amount
reflected in the books and records of the Seller or the
Servicer as the amount of such reduction, adjustment or
cancellation,
Page 32
Receivables Purchase Agreement
or in relation to paragraph (C), the Outstanding Balance of
the Purchased Receivables;
(ii) without limiting the generality or effect of any other
provision of this agreement if:
(A) a Purchased Receivable is not paid when due;
(B) the Servicer takes all reasonable steps in accordance
with the Credit and Collection Policy to collect the
Purchased Receivable; and
(C) the Purchased Receivable is not collected in full solely
by reason of any facts or circumstances the occurrence
of which constitutes a breach of any of the Seller's or
the Servicer's (if the Servicer is the Seller or an
Associate of the Seller) representations or obligations
under this agreement,
the Seller will be deemed to have collected an amount equal to
the Purchased Receivable (or any uncollected part) at the time
that breach is first detected by the Seller (however, for the
avoidance of doubt, neither the Seller nor the Servicer
guarantees the performance of the Purchased Receivables);
(iii) if:
(A) a Purchased Receivable together with the Contract or any
Related Agreement, is in contravention of any law or
with respect to which a party to the Contract related
thereto is in violation of any law and the Receivable
becomes unenforceable, the Seller will be deemed to have
collected an amount equal to the Purchased Receivable
(or any uncollected part) at the time that contravention
or violation is first detected by the Seller;
(B) (except as otherwise disclosed to the Company in writing
by the Seller prior to the date of the relevant Sale
Notice) any of the representations or warranties
contained in clause 7.1 prove to have been incorrect in
relation to a Purchased Receivable when made at the time
the Receivables are purchased by the Company, the Seller
will be deemed to have received a Collection of such
Purchased Receivable equal to its Original Balance less
any Collections with respect to that Receivable
previously accounted for and applied pursuant to clause
4, at the time the relevant circumstances are first
detected by the Seller; or
(C) in respect of any Purchased Receivables, the Seller
records in any account or ledger maintained by it in
respect of the relevant Obligor a payment of that
Purchased Receivable (whether by way of crediting that
account or ledger or otherwise),
then the Seller shall be deemed to have received a Collection
equal to that amount at the time the contravention, violation
or circumstances (as the case may be) are first detected by
the Seller, or at the time such recording is made (unless the
Seller has subsequently reversed that record of payment).
Page 33
Receivables Purchase Agreement
(b) If the Seller is not acting as the Servicer, it will promptly pay to
the Servicer (to be held by the Servicer in accordance with clause
9.2) the amount of any deemed Collection pursuant to clause
3.2(a)(i)-(iii) (inclusive).
(c) Any deemed Collection under clause 3.2 will be accounted for and
applied in accordance with clause 4 on the Remittance Date
immediately following the date on which that deemed Collection is
deemed to have occurred.
(d) Any Receivable for which there is a deemed Collection under this
clause 3.2 is deemed not to be an Overdue Receivable, a Receivable
Ineligible for Funding or Charge-Off Receivable.
(e) To the extent that the Seller is required to pay an amount under
this clause 3.2 as a direct consequence of a Dilution (the DILUTION
DEEMED COLLECTION), the Seller is only required to pay that part of
the Dilution Deemed Collection which, when aggregated with all
previous Dilutions, exceeds the sum of each amount equal to the
Dilution Reserve calculated on each Purchase Date (assuming for the
purpose of such calculation that the Purchased Receivables as at
each Purchase Date comprise only the Pool of Receivables referred to
in the Sale Notice or Further Notice (as the case may be) given on
that Purchase Date).
3.3 RETURN OF DISTRIBUTION
No amount payable in respect of a Purchase or pursuant to the Transaction
Documents shall be considered paid, and no Company's Investment shall be
reduced by any distribution of Collections pursuant to the Transaction
Documents, if at any time such payment or distribution is rescinded by any
law relating to preferential payments in the event of a bankruptcy or
insolvency or must otherwise be returned.
3.4 INTERPRETATION
All references in this agreement to the Seller accounting to the Company
for Collections made in respect of Purchased Receivables shall mean, in
relation to deemed Collections where no money may have been actually
received by the Servicer from, or for the account of, the relevant
Obligor, the payment by the Seller to the Servicer (to be held by the
Servicer in accordance with clause 9.2) no later than the time for
application of deemed Collections specified in clause 3.2(b) of an amount
or amounts equal to the deemed Collections.
4. SETTLEMENT PROCEDURES
4.1 SETTLEMENT PROCEDURES FOR ALL COLLECTIONS
(a) On:
(i) each Remittance Date; or
(ii) if an Early Amortisation Event is subsisting, more frequently
as the Company (acting reasonably, having regard to the
implications for the Seller and the Servicer) may from time to
time require,
the Seller and the Servicer shall account to the Company for
Collections in respect of Purchased Receivables. Subject to clause
3.1(a) and (b), Collections in NZ Dollars shall be
Page 34
Receivables Purchase Agreement
paid into the NZ Collection Account. If an Early Amortisation Event
occurs, Collections in NZ Dollars shall be converted into Dollars by
the Company under the Swap Agreement at the applicable Exchange
Rate. To the extent that Collections have been withdrawn by the
Seller or any Approved Originator from a Collection Account during
the relevant Collection Period pursuant to clause 3.1(c), the Seller
undertakes to pay, or to procure the Approved Originator to pay, to
the Company an amount equal to the withdrawn Collections on the
Remittance Date.
(b) Collections shall be allocated pari passu and rateably in the
following proportions:
(i) to the Company, the Purchased Interest, for application in
accordance with clause 4.1(c);
(ii) to the Seller, the Seller's Interest;
The Company undertakes to the Seller to, at the Company's election:
(iii) pay the Seller the amount required under clause 2.1(j)(i); or
(iv) if the Company does not pay that amount, allow the Servicer to
retain (if the Servicer is the Seller or any Associate of the
Seller) or to require the Servicer to pay to the Seller (if
the Servicer is not the Seller or an Associate of the Seller)
Collections equal to the amount allocated under clause
4.1(b)(ii), in satisfaction of the Company's liability to the
Seller under clause 2.1(j)(i).
(c) The Company shall apply amounts received under paragraph (b)(i) in
the following order:
(i) first, if the Seller is not the Servicer and the Servicer Fee
is payable, an amount equal to the Servicer Fee;
(ii) second, to the Company towards any Carrying Costs ;
(iii) third, to the Company to pay any other costs, expenses,
damages, claims or fees the Company incurs in servicing the
Purchased Receivables (including the costs and fees of any
replacement Servicer) which have been incurred under clauses
9.4 and 9.5;
(iv) fourth, subject to reinvestment under clause 2.1(i), to reduce
the Company's Investment; and
(v) fifth, when the Company's Investment is zero, to the Seller as
the balance of the purchase price in accordance with clause
4.2.
4.2 DISCHARGE AND RESERVES
(a) When the Servicer has received sufficient funds on behalf of the
Company to reduce the Company's Investment to zero, and no other
amounts are then due and payable to the Company by the Seller, or
(if the Servicer is the Seller or an Associate of the Seller) the
Servicer, under any Transaction Document, the Company undertakes to
the Seller to, at the Company's election:
(i) pay the Seller the amount required under clause 2.1(j)(ii); or
(ii) if the Company does not pay that amount, allow the Servicer to
retain (if the Servicer is the Seller or an Associate of the
Seller) or to require the Servicer to pay
Page 35
Receivables Purchase Agreement
to the Seller (if the Servicer is not the Seller or an
Associate of the Seller) any Collections remaining after
application under clauses 4.1(c)(i) - 4.1(c)(iv), in
satisfaction of the Company's liability to the Seller under
clause 2.1(j)(ii).
(b) Without limiting clauses 4.1(b) and 4.2(a) or the Servicer's
obligations to the Company under this agreement, the Seller has no
right to recover or receive all or any part of the Purchased
Receivables (including any Reserve) or any Collections (other than
in each case as trustee).
4.3 ADJUSTMENTS TO RESERVES
On each Purchase Date and Remittance Date, the Company shall, without
limiting or prejudicing its rights under this agreement, recalculate the
Required Reserve.
4.4 PAYMENTS AND COMPUTATIONS, ETC.
(a) The Seller and the Servicer shall make all payments to the Company
under a Transaction Document:
(i) without set off or counterclaim and without deduction, except
any compulsory deduction with respect to Taxation; and
(ii) by paying or depositing it in accordance with the terms of the
relevant Transaction Document no later than 11.00 am (or such
other time as the parties agree in writing) on the day when
due in same day funds to such bank account in Australia, or in
such other manner as the Company may specify from time to
time.
(b) All computations of interest and any fees under each Transaction
Document shall be made on the basis of a year of 365 days for the
actual number of days (including the first day but excluding the
last day) elapsed.
(c) If any payment is due on a day which is not a Business Day, the due
date will be the next Business Day in the same calendar month or, if
none, the preceding Business Day.
4.5 ADDITIONAL PAYMENTS
Whenever the Seller or the Servicer is obliged to make a deduction in
respect of Tax from any payment to the Company under any Transaction
Document:
(a) it shall promptly pay the amount deducted to the appropriate
Governmental Agency;
(b) within 30 days of the end of the month in which the deduction is
made, it shall deliver to the Company official receipts (or, if no
official receipt issues at such time, promptly after issue of an
official receipt) or other documentation acceptable to the relevant
Indemnified Party evidencing payment of that amount; and
(c) unless the Tax is a tax on overall net income, it shall pay the
Company on the due date of the payment any additional amounts
necessary (as determined by the Company) to ensure that the Company
receives when due a net amount (after payment of any Taxes in
respect of those additional amounts) in the relevant currency equal
to the full amount which it would have received had a deduction not
been made. It shall indemnify the Company on demand against the Tax
and any amounts recoverable from the Company in respect of the Tax.
Page 36
Receivables Purchase Agreement
Each of the Seller and the Servicer waives any statutory right to recover
from the Company any amount paid under this clause.
The obligations of the Seller and the Servicer under this clause survive
the repayment of the Company's Investment and the termination of this
agreement.
4.6 REIMBURSEMENT
(a) Whenever:
(i) the Seller or the Servicer pays any additional amount under
clause 4.5 in respect of deducted Tax; and
(ii) the Company (acting reasonably) decides that it has received
any clearly identifiable relief for the deducted Tax in
computing its income Tax,
the Company will promptly pay to the Seller or the Servicer (as the
case may be) the amount of any consequent reduction in its income
Tax, but only to the extent that it determines that a payment to the
Seller or the Servicer (as the case may be) can be made without
prejudice to the retention of the relief.
(b) Nothing in paragraph (a) interferes with the right of the Company to
arrange its tax affairs in any manner it thinks fit. In particular,
the Company need not claim any relief in respect of deducted Tax in
priority to any other relief available to it. Nor need it disclose
to the Seller or the Servicer any information regarding its tax
affairs or tax computations.
4.7 TREATMENT OF COLLECTIONS
(a) Subject to clause 3.1(c), so long as the Seller shall hold any
Collections required to be paid to the Servicer or the Company, it
shall hold such Collections on behalf of, and for the account of,
the Company and shall clearly xxxx such records as agreed between
the Company and the Seller in writing to reflect such account.
However, unless and until the Seller or the Servicer receives a
notice under clause 9.2(b), the Seller may commingle Collections
with its other property without being in breach of its fiduciary
obligations in respect of such Collections.
(b) To the extent that the Seller or an Approved Originator has
identified receipts of monies arising from a Receivable that has
been excluded from the Purchase Base, it may exclude such receipts
from the Collections if they are deposited into a Non-Receivables
Bank Account.
4.8 SETTLEMENT ARRANGEMENTS
Unless the Commitment Termination Date has occurred, Collections that
would otherwise be payable to the Company may be applied as payment for
all or part of any Further Instalment under any Further Notice that is
payable by the Company on the day the Collections are payable to the
Company.
4.9 CIRCUMSTANCES WHERE CLAUSES 3 AND 4 BECOME INOPERATIVE
Notwithstanding anything to the contrary in this agreement, the provisions
of clauses 3 and 4 (other than clauses 3.3, 4.2(a) and 4.9) cease to be
operative whenever the Company's Investment is zero during the term of
this agreement.
Page 37
Receivables Purchase Agreement
5. FEES
5.1 ARRANGER FEE
The Seller shall to the extent it has not already done so pay to the Agent
for its own account a one off arranger fee. The arranger fee shall be as
set out in the Mandate Letter and any unpaid arranger fee shall be payable
on the date of this agreement.
If the facility is increased or varied at the request of the Seller the
Company reserves the right to charge a further establishment or other fee
in an amount determined by it.
5.2 CHANGES IN LAW
When there is a change in law that will result in Program Costs the
Company shall use best endeavours to mitigate the effect of such change in
law, failing which the Company and the Seller shall negotiate in good
faith to avoid or reduce the effect of such change. If that also fails the
Seller shall from time to time pay to the Company upon demand such amounts
as necessary to compensate the Company for such Program Costs on and from
the date that they are incurred or suffered. If the Seller requires these
costs to be verified by an independent accounting firm, they shall only be
payable to the extent they are so verified.
The Seller's obligations under this Clause survive the termination of this
agreement and any Future Agreement.
5.3 PROGRAM COSTS
The Agent agrees to notify the Seller as soon as it becomes aware of
Program Costs.
5.4 PREPAYMENT AMOUNT
If the Commitment Termination Date is a date other than the Scheduled
Commitment Termination Date, then on the Commitment Termination Date the
Seller will pay the Prepayment Amount to the Agent.
6. CONDITIONS PRECEDENT TO PURCHASES
6.1 CONDITIONS PRECEDENT TO INITIAL PURCHASE
The right of the Seller to give the first Sale Notice shall be subject to
the Agent having received in form and substance satisfactory to the Agent
on or before the date such Sale Notice is given:
(a) (VERIFICATION CERTIFICATE) a certificate in relation to each of the
Seller and the Servicer given by a director of the Seller and the
Servicer respectively substantially in the form of Annexure B with
the attachments referred to and dated at or about the date such Sale
Notice is given;
(b) (DOCUMENTS) duly executed counterparts of:
(i) this agreement;
(ii) the Originator Guarantee;
(iii) both Liquidity Facility Agreements; and
Page 38
Receivables Purchase Agreement
(iv) each Collection Account Letter,
together with a cheque for all relevant stamp duty;
(c) (CREDIT AND COLLECTION POLICY) a copy of the Credit and Collection
Policy initialled by the Seller and the Agent;
(d) (COMPANY'S LAWYERS' OPINIONS) an opinion of Australian and New
Zealand legal advisers to the Company and the Agent;
(e) (ACCOUNTANT'S CERTIFICATE) an opinion from an auditor that its
review of the systems of the Seller and the reporting of the
Receivables is consistent with the Seller's records;
(f) (DEED OF RELEASE) evidence satisfactory to the Agent that every
Chargee releases any claim it may have to any Receivables originated
by the Seller and each Approved Originator or Collections derived
from such Receivables, except in relation to the Seller's Interest,
a Permitted Security Interest or a Supplier's Security Interest;
(g) (POWER OF ATTORNEY) each Approved Originator has provided to the
Agent a power of attorney in a form consistent with clause 12;
(h) (SALE TO SELLER) evidence that the relevant Approved Originators
have equitably assigned to the Seller the Purchased Receivables
originated by them by way of Approved Originator Sale Notices;
(i) (REGISTRATION OF THE COMPANY'S INTEREST OF NZ RECEIVABLES) evidence
that the relevant financing statements have been registered in
accordance with the provisions of clause 2.5 by the Company's NZ
legal advisers; and
(j) (DIRECTOR'S CERTIFICATE) a director's certificate from each NZ
Approved Originator substantially in the form set out in Annexure E.
(k) (ENDORSEMENT FROM TRADE CREDIT INSURER) a banker's endorsement from
the provider of the Insurance Policies in favour of the Company that
the Company is an insured as described pursuant to the Insurance
Policies.
6.2 FURTHER CONDITIONS PRECEDENT
The rights of the Seller to give a Sale Notice or Further Notice and the
obligations of the Company to pay an Instalment or Further Instalment
shall be subject to the further conditions precedent that:
(a) on the date of giving the Sale Notice or Further Notice or the date
of payment of the Instalment or Further Instalment the following
statements shall be true (and the Seller shall, by virtue of giving
the Sale Notice or Further Notice, or accepting the Instalment or
Further Instalment be deemed to have certified that):
Page 39
Receivables Purchase Agreement
(i) (REPRESENTATIONS TRUE):
(A) the representations and warranties in clause 7.1 in
respect of the Seller and, where the Servicer is the
Seller or an Associate of the Seller, the Seller and
Servicer are, to the best of the Seller's and Servicer's
knowledge and belief, true as of such day as though they
had been made at that date in respect of the facts and
circumstances then subsisting; or
(B) the representations and warranties in clause 7.1 in
respect of the Servicer, where the Servicer is not the
Seller or an Associate of the Seller, are to the best of
the Servicer's knowledge and belief true as of such day
as though they had been made at that date in respect of
the facts and circumstances then subsisting;
(ii) (NO DEFAULT) no event has occurred and is subsisting or would
result from the giving of the Sales Notice or Further Notice,
or accepting of the Instalment or Further Instalment payment
that constitutes an Early Amortisation Event or Potential
Early Amortisation Event;
(iii) (LIMITS) after making the Instalment:
(A) clause 2.2 will not be breached; and
(B) the Net Pool Balance shall equal or exceed the sum of
the Company's Investment and the Required Reserves;
(b) on or before the date of that Sale Notice or Further Notice or the
payment of the Instalment or Further Instalment, the Agent has
received in form and substance to the satisfaction of the Agent:
(i) (DETERMINATION DATE STATEMENT) a Determination Date Statement
as of the most recent Determination Date;
(ii) (RELEASE) to the extent necessary the release from any
Security Interest of the Purchased Receivables other than a
Permitted Security Interest or a Supplier's Security Interest;
and
(iii) (STAMP DUTY) evidence that the Seller has paid all stamp duty
payable in respect of the documents referred to in clause
6.1(b) and all transactions under this agreement.
7. REPRESENTATIONS AND WARRANTIES
7.1 REPRESENTATIONS AND WARRANTIES
Each of the Seller and the Servicer makes the following representations
and warranties:
(a) (STATUS) It is a corporation validly existing under the laws of the
place of its incorporation specified in this agreement.
(b) (POWER) It has the power to enter into and perform its obligations
under the Transaction Documents to which it is expressed to be a
party to carry out the transactions contemplated
Page 40
Receivables Purchase Agreement
by those documents and to carry on its business substantially as now
conducted or contemplated.
(c) (CORPORATE AUTHORISATIONS) It has taken all necessary corporate
action to authorise the entry into and performance of the
Transaction Documents to which it is expressed to be a party and to
carry out the transactions contemplated by those documents.
(d) (DOCUMENTS BINDING) Each Transaction Document to which it is
expressed to be a party is its valid and binding and enforceable
obligation in accordance with its terms, subject to any necessary
stamping and registration, general principles of equity and laws
relating to insolvency.
(e) (TRANSACTIONS PERMITTED) The execution and performance by it of the
Transaction Documents to which it is expressed to be a party and
each transaction contemplated under those documents did not and will
not (as applicable) violate in any respect a provision of:
(i) a law or treaty or a judgment, ruling, order or decree of a
Governmental Agency binding on it;
(ii) any constitution or other constituent documents; or
(iii) any other document or agreement which is binding on it or its
assets,
and, except as provided or permitted by the Transaction Documents,
did not and will not:
(iv) create or impose a Security Interest on any of the Purchased
Receivables contemplated in any Future Agreement other than a
Permitted Security Interest (if any); or
(v) allow a person to accelerate or cancel an obligation with
respect to Financial Indebtedness provided to the Seller or
Servicer (for so long as the Servicer is the Seller or an
Associate of the Seller) or constitute an Early Amortisation
Event, cancellation event, prepayment event or similar event
(whatever called) under an agreement relating to such Financial
Indebtedness, whether immediately or after notice or lapse of
time or both.
(f) (ACCOUNTS)
(i) Its most recent consolidated and unconsolidated Accounts give
a true and fair view of the matters with which they deal.
(ii) There has been no subsequent change in its and the Approved
Originator's state of affairs since that date which may have a
Material Adverse Effect or materially adversely affect the
collectability of the Receivables.
(iii) Those consolidated accounts comply:
(A) with current accounting practices, except to the extent
disclosed in them; and
(B) with all applicable laws.
(iv) All material Financial Indebtedness and other material
contingent liabilities are disclosed in those accounts.
Page 41
Receivables Purchase Agreement
(g) (NO LITIGATION) Other than as disclosed in writing to the Agent
prior to the date of this agreement, no litigation, arbitration, Tax
claim, dispute or administrative or other proceeding is current or
pending or, to its knowledge, threatened, which is reasonably likely
to have a Material Adverse Effect.
(h) (NO DEFAULT)
(i) It is not and none of the Approved Originators are in default
under a document or agreement (including an Authorisation)
binding on it or its assets which relates to Financial
Indebtedness and which may have a Material Adverse Effect.
(ii) Nothing has occurred which constitutes an Early Amortisation
Event, cancellation event, prepayment event or similar event
(whatever called) under any Future Agreement or any other
material agreements, whether immediately or after notice or
lapse of time or both where in any such case the default would
have a Material Adverse Effect.
(i) (AUTHORISATIONS) Each Authorisation which is required in relation
to:
(i) the execution, delivery and performance by it of Transaction
Documents to which it is expressed to be a party and the
transactions contemplated by those documents;
(ii) the validity and enforceability of Transaction Documents to
which it is expressed to be a party;
(iii) the perfection of the interest of the Company in the Purchased
Receivables (not including such Authorisations, (if any)
pertaining solely to acts of the Company);
(iv) its business as now conducted or contemplated in the
Subscription Agreement,
has been obtained or effected. Each is in full force and effect. It
has complied with each of them. It has paid all applicable fees for
each of them.
(j) (FILINGS) It has filed all necessary returns and holds all
appropriate licences and possesses the necessary skill, judgement
and ability to carry out its obligations under the Transaction
Documents.
(k) (NO MISREPRESENTATION) All information provided by it to the Company
and the Agent is true in all material respects at the date of this
agreement or, if later, when provided. Neither that information nor
its conduct and the conduct of anyone on its behalf in relation to
the transactions contemplated by Transaction Documents, was or is
misleading , by omission or otherwise, in any material respect.
(l) (AGREEMENTS DISCLOSED) Each document or agreement which has the
effect of varying a Transaction Document has been disclosed to the
Agent in writing.
(m) (COPIES OF DOCUMENTS) All copies of documents (including its latest
audited accounts and all Authorisations) given by it or on its
behalf to the Company and the Agent are true and complete copies.
(n) (LAW) It and each of the Approved Originators has complied with all
laws binding on it where breach may have a Material Adverse Effect.
(o) (TRUST) It does not hold any Receivables or enter into any
Transaction Document as the trustee of any trust other than under a
Future Agreement.
Page 42
Receivables Purchase Agreement
(p) (SOLVENCY) It, and each Approved Originator, is solvent and able to
pay its indebtedness as it falls due. No proceedings are
contemplated by it, or to the best of its knowledge threatened by
others with respect to it, for the commencement of liquidation
proceedings or for the appointment of a receiver.
(q) (TAXES) It, and each Approved Originator, has filed all Tax returns
which it is (or has been) required to file and has paid all Taxes as
shown on such returns and on all assessments received by it to the
extent that such Taxes have become due, but:
(i) it, or the relevant Approved Originator, need not pay Taxes
for which it has set aside sufficient reserves and which are
being contested in good faith, except where failure to pay
those Taxes may have a Material Adverse Effect; and
(ii) it, or the relevant Approved Originator, will pay contested
Taxes which it is liable to pay on the final determination or
settlement of the contest.
(r) (VALID SALE) It intends that each Purchase will constitute a valid
sale, by way of equitable assignment of the Purchased Receivables to
the Company, enforceable against creditors of, and purchasers from
the Seller (subject to the rule in XXXXXX X XXXX and subject to the
rights of any creditor of a NZ Approved Originator or the Seller to
the extent of each relevant Supplier's Security Interest approved by
the Agent (if any)).
(s) (QUALITY OF TITLE) Each Receivable offered for sale to the Company
is beneficially owned by the Seller free and clear of any Security
Interest (other than any Security Interest arising solely as the
result of any action taken by the Company or by the Agent including,
for the avoidance of doubt, a Permitted Security Interest or a
Supplier's Security Interest approved by the Agent).
(t) (ACCURATE REPORTS) To the best of its knowledge and belief (after
reasonable investigation) no Determination Date Statement (if
prepared by the Seller, or to the extent information contained in
that Determination Date Statement was supplied by the Seller),
information, exhibit, financial statement, document, book, record or
report furnished or to be furnished by the Seller or the Servicer to
the Agent or the Company in connection with a Transaction Document
is inaccurate in any material respect as of the date it is dated or
(except as otherwise disclosed to the Agent or the Company, as the
case may be, at that time) as of the date so furnished, or contains
any material misstatement of fact or omission or omits to state a
material fact or any fact necessary to make the statements contained
therein not materially misleading.
(u) (RECEIVABLES) Every Receivable has been, or will be, offered for
sale to the Company.
(v) (SERVICING PROGRAMS) Any and all programs used by the Seller, or any
agent or subcontractor of the Seller, in the servicing of the
Purchased Receivables are owned leased or licensed by it, or, as the
case may be, by the relevant agent or subcontractor.
(w) (NO SECURITY INTERESTS) The Seller, or the relevant Approved
Originator, created or acquired title to the Receivables in good
faith, without notice of any adverse claim other than any relevant
Supplier's Security Interest notified by the Servicer to the Agent.
(x) (NO FRAUDULENT CONVEYANCE) To the best of its knowledge, no
circumstances exist by reason of which any transfer of any Purchased
Receivables from the Approved Originators to the Seller or from the
Seller to the Company would be held by a court of competent
Page 43
Receivables Purchase Agreement
jurisdiction to constitute under value transfers or otherwise as
preferential, fraudulent or uncommercial transactions.
(y) (NOT ASSETS OF THE SELLER) It intends that no Purchased Receivable
will be considered by it to be an asset beneficially owned by the
Seller or an Approved Originator in the event of any receivership or
liquidation proceedings against it under applicable law.
(z) (ENTIRE DOCUMENTS) Each Contract contains all of the terms of the
arrangements between the Seller, or the relevant Approved
Originator, and the Obligor in respect of matters covered by those
documents and there are no other documents or agreements which have
the effect of varying or discharging any of those documents. Those
documents constitute all the documents necessary to enforce the
provisions of the Contract.
(aa) (CREDIT AND COLLECTION POLICY) It or the relevant Approved
Originator has complied with and will comply in all material
respects with the Credit and Collection Policy in respect of
Purchased Receivables and Purchased Receivables.
(bb) (APPROVED ORIGINATOR) Each Approved Originator:
(i) is a Related Corporation, of the Seller, who originates the
invoices in its ordinary course of business;
(ii) has offered for sale its beneficial interest in all
Receivables it has originated to the Seller for the purposes
of the offer that may be made by the a Seller under a Sale
Notice; and
(iii) has provided the Agent with a power of attorney to effect the
legal sale of the Receivables in a form consistent with clause
12.
(cc) (KNOWLEDGE) It is not aware of any facts which may have a Material
Adverse Effect on its ability to perform its obligations under the
Transaction Documents.
(dd) (CHANGE IN COLLECTION ACCOUNT) It will notify the Agent of any
proposed change in a Collection Account and request the Agent to
approve any such proposed change.
(ee) (NON RECEIVABLES BANK ACCOUNT) All collections or proceeds not
relating to the Receivables have been deposited in a Non-Receivables
Bank Account.
7.2 GENERAL REPRESENTATIONS AND WARRANTIES
The Seller represents and warrants in relation to the NZ Receivables that
the Credit and Collection Policy of the NZ Approved Originator, together
with the Contract, contains all the contractual arrangements between the
NZ Approved Originator and the relevant Obligor concerning the goods sold
in accordance with the Credit and Collection Policy and the subject of the
relevant Contract between the NZ Approved Originator and the relevant
Obligor.
7.3 RELIANCE ON REPRESENTATIONS AND WARRANTIES
Each of the Seller and the Servicer acknowledges that the Company has
entered into this agreement, and may accept an offer in any Sale Notice in
accordance with clause 2.1 and, if an offer is accepted, will make each
Instalment and Further Instalment in reliance on the representations and
warranties in clauses 7.1, 7.2 and 7.3.
Page 44
Receivables Purchase Agreement
8. UNDERTAKINGS
8.1 GENERAL UNDERTAKINGS
Each of the Seller and the Servicer undertakes to each Indemnified Party
as follows unless the Agent otherwise consents.
(a) (CORPORATE REPORTING AND INFORMATION) It will provide the Agent with
a copy for the Company:
(i) (ANNUAL ACCOUNTS) as soon as practicable (but within 120 days)
after the close of each of its financial years copies of its
consolidated accounts in respect of that financial year;
(ii) (QUARTERLY REPORTS) as soon as practicable (but within 30
days) after each quarter of its financial year, copies of its
consolidated Accounts in respect of that quarter showing both
actual and budgeted figures for that quarter and for the
financial year to date.
(iii) (MONTHLY DETERMINATION DATE STATEMENT REPORTING) a monthly
Determination Date Statement for the preceding month and an
Accounts Receivable Trial Balance for the preceding month on a
date in each month agreed between the Seller and the Company;
(iv) (DOCUMENTS ISSUED TO SHAREHOLDERS) promptly, all material
documents provided by it to a stock exchange or holders of
Marketable Securities issued by it;
(v) (GOVERNMENTAL AGENCY) promptly, any notice, order or material
correspondence from or with a Governmental Agency relating to
the Purchased Receivables which may have a Material Adverse
Effect;
(vi) (SECURITY INTERESTS) promptly, notice in reasonable detail of
any Security Interest (other than a Permitted Security
Interest) asserted against any of the Purchased Receivables;
(vii) (LITIGATION) promptly, written particulars of any litigation,
arbitration, tax claim, dispute or administrative or other
proceeding in relation to it or the Approved Originators
involving a claim exceeding A$2,000,000 or its equivalent
other than a claim for worker's compensation and claims the
Agent has already been notified of in writing referencing this
paragraph;
(viii) (OTHER INFORMATION) promptly, from time to time, such other
information, documents, records or reports relating to the
Purchased Receivables or the conditions or operations,
financial or otherwise, of the Seller as the Agent may from
time to time reasonably request in order to protect the
interests of the Company and the Agent under any Transaction
Document.
(b) (TRANSACTION DOCUMENTS) promptly, details of any material variation
of Transaction Documents or of any actual or termination of a
Transaction Documents;
(c) (ACCOUNTING PRINCIPLES) It will ensure that each balance sheet and
account provided under paragraph (a):
Page 45
Receivables Purchase Agreement
(i) complies with current accounting principles applied in the
applicable jurisdictions except to the extent disclosed in
them and with all applicable laws; and
(ii) gives a true and fair view of the matters with which they
deal;
(d) (AUTHORISATIONS) It will ensure that each Authorisation required
for:
(i) the execution, delivery and performance by it of the
Transaction Documents to which it is expressed to be a party
and the transactions contemplated by those documents;
(ii) the validity and enforceability of those documents; and
(iii) the carrying on by it and each of the Approved Originators of
a material part of the business as now conducted or
contemplated,
is obtained and promptly renewed and maintained in full force and
effect where failure to do so may have a Material Adverse Effect. It
will pay all applicable fees for them. It will provide copies of the
Authorisations referable to sub-paragraphs (i) and (ii) promptly to
the Agent when they are obtained or renewed and in the case of
Authorisation referable to sub-paragraph (iii) after request from
the Agent promptly when they are obtained or renewed;
(e) (CHANGE OF CONTROL) it will notify the Agent if there is an
acquisition by a person or any of its Associates of more than 19.9%
of the ordinary shares of the Seller or a Related Corporation such
that the aggregate beneficial shareholding in Tech Pacific Holdings
Pty Limited of that person and any of its Associates exceeds 19.9%;
(f) (NOTICE TO AGENT) It will notify the Agent as soon as it becomes
aware of:
(i) any Early Amortisation Event or Potential Early Amortisation
Event or an Event of Review;
(ii) any proposal by a Governmental Agency to acquire compulsorily
the whole or substantial part of its or any of the Approved
Originator's assets or business which may have a Material
Adverse Effect;
(iii) any substantial dispute between it or any of the Approved
Originators and a Governmental Agency which may have a
Material Adverse Effect;
(iv) any change in its Authorised Officers, giving specimen
signatures of any new Authorised Officer appointed, and, where
reasonably requested by the Agent, evidence satisfactory to
the Agent of the authority of any Authorised Officer; and
(v) any impending change in the regulation of the business of the
Seller by any Governmental Agency of which it is aware and
where that change might reasonably be expected to have a
Material Adverse Effect or may impair the ability of the
Seller, the Servicer or the Company to recover any amount
under a Purchased Receivable.
(g) (DISPOSAL OF ASSETS) It will not sell or otherwise dispose of, part
with possession of, or create an interest in:
(i) any Purchased Receivable or related Contract;
(ii) any Collection Account to which any Collections of any
Purchased Receivables are deposited; or
Page 46
Receivables Purchase Agreement
(iii) either:
(A) all of its assets; or
(B) a part of its assets, where to do so might have a
Material Adverse Effect,
or agree or attempt to do so (whether in one or more related or
unrelated transactions) except as contemplated by this agreement or
any Future Agreement.
(h) (NEGATIVE PLEDGE) It will not create or allow to exist a Security
Interest over any Purchased Receivable other than a Permitted
Security Interest or Supplier's Security Interest approved by the
Agent or lien arising by operation of law in the ordinary course of
day-to-day trading and not securing Financial Indebtedness where it
duly pays the indebtedness secured by that lien other than
indebtedness contested in good faith for a period not exceeding 30
days.
(i) (CORPORATE EXISTENCE) It will do everything necessary to maintain
its corporate existence in good standing. It will not transfer its
jurisdiction of incorporation or enter any merger or consolidation.
(j) (COMPLIANCE WITH LAW) It will comply fully with all laws binding on
it where failure to do so may have a Material Adverse Effect.
(k) (PARTNERSHIP AND JOINT VENTURES) It will not enter into a
partnership or joint venture with another person.
(l) (PAY TAXES) It will pay all Taxes payable by it when due, but:
(i) it need not pay Taxes for which it has sufficient resources to
pay and which are being contested in good faith, except where
failure to pay those Taxes may have a Material Adverse Effect;
and
(ii) to the extent liable, it will pay those Taxes on the final
determination or settlement of the contest.
(m) (COMPLIANCE AND ENFORCEMENT OF TRANSACTION DOCUMENTS) It will:
(i) comply fully with its obligations under the Transaction
Documents;
(ii) enforce each Transaction Document to which it is a party and
exercise its rights, authorities and discretions under those
documents prudently and vigorously in order to avoid a
Material Adverse Effect; and
(iii) use its best endeavours to keep Transaction Documents valid
and enforceable,
where a failure to take such action would be likely to have a
Material Adverse Effect.
(n) (VARIATION OF TRANSACTION DOCUMENTS) It will not do any thing which
has the effect of:
(i) amending or varying, or consenting to any amendment or
variation of;
(ii) avoiding, releasing, surrendering, terminating, rescinding,
discharging (other than by performance) or accept the
repudiation of;
(iii) expressly or implicitly waiving, or extending or granting any
time or indulgence in respect of, any provision of or
obligation under; or
(iv) do or permit anything which would enable or give grounds to
another party to do anything referred to in sub-paragraphs
(i), (ii) or (iii) in relation to,
Page 47
Receivables Purchase Agreement
a Transaction Document where such action would be likely to have a
Material Adverse Effect.
(o) (COMMERCIAL DEALINGS) It will not deal in any way with any person
except at arm's length in the ordinary course of business for
valuable commercial consideration provided that, to the extent this
undertaking relates to the conduct of its Subsidiary (which is not
itself an Approved Originator), it shall only apply to material
dealings of that Subsidiary.
(p) (CHANGE OF BUSINESS OR CREDIT AND COLLECTION POLICY)
(i) It will not cease or materially change its business carried on
in connection with any Purchased Receivable without the
consent of the Agent (which must not be unreasonably withheld
or delayed).
(ii) It will not make any change and will ensure that no Approved
Originator makes any change to the Credit and Collection
Policy, or its policy in respect of writing off amounts owing
under Receivables, that would impact recoverability or affect
the collectability of the Receivables (other than any change
reasonably required in the ordinary course of business)
without the consent of the Agent (which must not be
unreasonably withheld or delayed).
(iii) It will not take action whether by acquisition or otherwise
which alone or in aggregate would materially alter the nature
of its business taken as a whole that would impact
recoverability or affect the collectability of the Receivables
without the consent of the Agent (which must not be
unreasonably withheld or delayed).
(iv) It will not dissolve, liquidate, consolidate with or merge
with, or otherwise acquire all or any substantial portion of
the ownership interest, assets, or properties of any
corporation, partnership, limited liability company or other
entity if to do so might have a Material Adverse Effect.
(q) (TAKE PROCEEDINGS) It will take or defend all legal proceedings
which are necessary or which the Company reasonably requires to
protect or recover any right, title or interest in, to, under or
derived from the Purchased Receivables.
(r) (NOTHING PREJUDICIAL) It will not do or omit to do anything which
might render the rights of the Company in the Purchased Receivables
liable to forfeiture, cancellation, avoidance or loss or might
otherwise prejudicially affect the rights of the Company in the
Purchased Receivables or the value of the Purchased Receivables.
(s) (NOTICES) It will promptly deliver to the Company copies of all
notices and other documents received by it in its capacity as a
party to the Purchased Receivables or relating in any way to the
Purchased Receivables which materially affect the collectability of
any of the Purchased Receivables.
(t) (RECORDS) It will, at its own cost and expense retain:
(i) the ledger and documentation relating to it as a master record
of the Purchased Receivables; and
(ii) copies of all documents relating to each Purchased Receivable
as custodian for the Company.
(u) (AMENDING RECEIVABLES)
Page 48
Receivables Purchase Agreement
(i) It will not:
(A) release, discharge, rescind or cancel;
(B) grant any waiver or modify;
(C) extend any term or provision of,
any Purchased Receivable or any Contract without the prior
written consent of the Agent (which must not be unreasonably
withheld or delayed), except in the ordinary course of
business and consistent with the provisions of the Credit and
Collection Policy.
(ii) It will not consent to the creation of any Security Interest
over any Receivable without the prior written consent of the
Agent other than a Permitted Security Interest.
(iii) It will not amend any Insurance Policy other than as required
in the ordinary course of business and consistent with the
provisions of the Credit and Collection Policy and ensure any
Insurance Policy remains in full force and effect with an
Eligible Insurer and renewed, if necessary, on such terms as
are required in the ordinary course of business and consistent
with the provisions of the Credit and Collection Policy.
(v) (ADMINISTRATIVE PROCEDURES) In the case of the Servicer only, it
will maintain administrative and operating procedures (including an
ability to recreate records evidencing the Purchased Receivables in
the event of the destruction of the originals) and keep and maintain
all documents, books, records and other information reasonably
necessary or customary for the collection of all Purchased
Receivables (including records adequate to permit the daily
identification of each new Purchased Receivable and all Collections
of and adjustments to each existing Purchased Receivable).
(w) (INSPECTION) At any other time and from time to time during regular
business hours, it will permit the Agent, or its agents or
representatives, upon two Business Day's notice:
(i) to examine and make copies of and abstracts from all books,
records and documents (including, without limitation, computer
tapes and disks) in the possession or under the control of the
Seller relating to the Purchased Receivables including,
without limitation, the related Contracts and other
agreements; and
(ii) to visit the offices and properties of the Seller for the
purpose of examining such materials described in paragraph (i)
above, and to discuss matters relating to the Purchased
Receivables or the Seller's or the Servicer's performance
under each Future Agreement with any of the officers or
employees of the Seller or the Servicer having knowledge of
such matters.
(x) (PERFORMANCE AND COMPLIANCE WITH RECEIVABLES AND CONTRACTS) At its
expense, it will timely and fully perform and comply with all
material provisions, covenants and other promises required to be
observed by it under or in connection with the Purchased Receivables
and the related Contracts and other agreements related to such
Purchased Receivables and shall comply in all material respects with
all of the provisions of the Credit and Collection Policy.
Page 49
Receivables Purchase Agreement
(y) (COLLECTIONS)
(i) It will instruct all Obligors to cause all Collections of
Purchased Receivables to be deposited directly into the
relevant Collection Account.
(ii) To the extent that the Seller or Servicer receives any
Collections it shall deposit them in the relevant Collection
Account within 1 Business Day of receipt.
It shall ensure that its records and accounts are such that it will
always be possible to determine what Collections it has received,
and subject to clause 3.1(c), it shall hold the Collections to which
the Company is or may become entitled on behalf of and for the
account of the Company.
(z) (CHANGE IN PAYMENT INSTRUCTIONS TO OBLIGORS) It will not make any
change in its instructions to Obligors regarding payments to be made
to the account referred to in paragraph (y), unless the Agent has
approved such change.
(aa) (AUDITS)
(i) On 14 days written notice from the Agent, it shall permit the
Company and the Agent and their respective officers and agents
at the Company's expense to audit its records and systems in
such reasonable detail that the Company and the Agent may
establish whether or not the Seller is complying with its
obligations under any Transaction Document.
(ii) It will deliver (at the Seller's cost) to the Company not
later than 120 days after the Seller's financial end of year
in each year a certificate from the Seller's auditor, stating,
without material qualification that:
(A) the Seller's systems and operating procedures are
adequate to enable it to comply with its obligations
under the Transaction Documents; and
(B) the Seller has complied with its obligations under the
Transaction Documents.
(bb) (CHANGE NAME) It will not, and neither will it permit any Approved
Originator to:
(i) change its name without first notifying the Company of the new
name not less than 21 days before the change takes effect; or
(ii) relocate its principal place of business outside Australia or
New Zealand (as the case may be) or change its place of
incorporation.
(cc) (NZ RECEIVABLES) The aggregate Outstanding Balance of all NZ
Receivables owned at any time by the Company will be less than
NZ$70,000,000.
8.2 UNDERTAKING BY THE AGENT
The Agent undertakes to the Seller that if there is any drawing of the
underwriting facility that supports the Commercial Paper Notes, it will
direct the Company to make a drawing on the Liquidity Facility Agreement
on the next Business Day, and for so long as Westpac is the Liquidity
Participant under the Liquidity Facility Agreement, it shall fund each
such drawing.
Page 50
Receivables Purchase Agreement
9. ADMINISTRATION, SERVICING, COLLECTION AND BACK-UP SERVICING
9.1 APPOINTMENT
(a) Subject to clause 9.3, each of the Seller, the Company and the Agent
appoints the Servicer as its agent to enforce its rights and
interests in and under the Purchased Receivables and the Contracts
with all powers expressly delegated to it by this agreement together
with all other powers reasonably incidental to those powers.
(b) The Servicer may subcontract with any other person for servicing,
administering or collecting the Purchased Receivables, provided that
in the case where such subcontracting may materially effect the
collectability of any Purchased Receivable the Servicer shall first
obtain the prior consent of the Agent which shall not to be
unreasonably withheld or delayed. The Servicer shall remain liable
for the performance of those duties and obligations.
(c) The Servicer's appointment under this agreement will terminate on
the date after the Commitment Termination Date when the Company's
Investment is zero and all other amounts owed by the Seller to the
Agent and the Company under the Transaction Documents have been
fully and finally paid and all amounts payable to the Seller under
clause 2.1(j) have been fully and finally paid or when the Servicer
is replaced under Clause 9.3.
9.2 DUTIES OF THE SERVICER
(a) (COLLECTION OF RECEIVABLES) The Servicer shall take or cause to be
taken all such actions to collect each Purchased Receivable from
time to time in accordance with the Credit and Collection Policy,
applicable laws, rules and regulations and otherwise, with
reasonable care and diligence exercising the same standard of care
that a prudent company carrying on a similar business as the
Servicer would adopt.
(b) (DEPOSIT COLLECTIONS) If an Early Amortisation Event is subsisting
and if requested by the Company the Servicer shall on each day
Collections are made or deemed to be made ensure that these are paid
into a bank account specified by the Company from time to time.
(c) (HOLD COLLECTIONS) The Servicer shall hold all Collections to which
the Company is or may become entitled which are unbanked cheques for
the benefit of the Company, and for the Company's account.
(d) (SERVICER'S RECORDS) The Servicer shall ensure its records and
accounts are such that it will always be able to determine what
Collections it has received and in respect of which Purchased
Receivables.
(e) (DOCUMENTS AND RECORDS) If the Servicer is the Seller or an
Associate of the Seller, the Company authorises the Servicer to,
without limiting its obligations under this clause 9.2(e) to the
Company, use and make copies of all such documents, computer tapes,
disks and Related Agreements in the ordinary course of the
Servicer's and its Associate's businesses and for all other purposes
necessary for or ancillary to the performance of its obligations
under this agreement. This clause 9.2(e) survives termination of
this agreement.
Page 51
Receivables Purchase Agreement
9.3 REPLACEMENT OF THE SERVICER
(a) If a Servicer Transfer Event is subsisting, the Agent may remove the
Servicer from office by giving the Servicer a Successor Notice.
(b) Upon removal of a Servicer the Agent has the right to appoint a
successor Servicer who accepts the appointment.
(c) Subject to the appointment of a successor Servicer acceptable to the
Agent (acting reasonably) the Servicer may resign at any time by
giving not less than 1 month's notice to the Agent.
(d) On its appointment the successor Servicer will have all the rights,
powers and obligations under this agreement of the retiring
Servicer. The retiring Servicer will be discharged from its rights,
powers and obligations under this agreement.
(e) The retiring Servicer shall execute and deliver all documents and
agreements which the Agent reasonably believes are necessary or
desirable to effect the appointment of the successor.
9.4 REMUNERATION OF SUCCESSOR SERVICER
The Seller agrees to pay or reimburse the Company for all its reasonable
costs and expenses incurred in connection with the performance of the
Servicer's duties by a successor Servicer as specified in any Transaction
Document, including, at any time, an amount equal to the Servicer Fee at
that time less the Servicer Amount at that time (if positive).
9.5 RIGHTS OF THE AGENT
(a) (NOTICE TO OBLIGORS) If a Servicer Transfer Event is subsisting the
Agent may notify any Obligor of a Purchased Receivable of the
Company's ownership of the Purchased Receivables.
(b) (COLLECTION ACCOUNTS) If an Early Amortisation Event is subsisting,
the Agent shall notify the Seller and the Servicer to take the
action required under clause 8.1(y).
(c) (RIGHTS ON SERVICER TRANSFER EVENT) At any time following the
appointment of a Servicer other than the Seller pursuant to clause
9.3:
(i) the Agent may direct the Obligors of Purchased Receivables, or
any of them, to pay all amounts payable under any Purchased
Receivable directly to the Agent or its designee;
(ii) the Seller shall, at the Agent's request and at the Seller's
expense, give notice of the Company's ownership of the
Purchased Receivables to each Obligor and direct that payments
be made directly to the Agent or its designee;
(iii) each of the Seller and the outgoing Servicer shall, at the
Agent's request:
(A) assemble all Contracts and copies of the other
documents, instruments and other records (including
computer programs, tapes and disks) held by the Seller
or the Servicer (as the case may be) which evidence the
Purchased Receivables, or which are otherwise necessary
or desirable to collect such Purchased Receivables, and
shall make the same available to
Page 52
Receivables Purchase Agreement
the Agent at a place selected by the Agent or its
designee (not being a place where, in consequence of the
presence in that place of any such document, instrument
or record, the Seller would have any increased liability
to Taxes, significant fees, costs, charges, expenses or
other outgoings beyond the liability it would have had
if it had retained such document, instrument or record
in the jurisdiction in which it was previously held);
and
(B) segregate all cash, cheques and other instruments
received by it from time to time constituting
Collections of Purchased Receivables in a manner
acceptable to the Agent and shall, promptly upon
receipt, remit all such cash, cheques and instruments,
duly endorsed or with duly executed instruments of
transfer, to the Agent or its designee; and
(iv) each of the Seller and the Company authorises the Agent to
take any and all steps in the Seller's name and on behalf of
the Seller and the Company which are necessary or desirable,
in the determination of the Agent, to collect all amounts due
under any and all Purchased Receivables, including, without
limitation, endorsing the Seller's name on cheques and other
instruments representing Collections and enforcing such
Purchased Receivables and the related Contract.
9.6 RESPONSIBILITIES OF THE SELLER
The following provisions apply despite any other term of any Transaction
Document:
(a) The Seller shall perform all of its obligations under the Contracts
related to the Purchased Receivables and other agreements to the
same extent as if the Purchased Receivables had not been sold and
the exercise by the Agent of its rights shall not relieve the Seller
from such obligations.
(b) Neither the Agent nor the Company shall have any obligation or
liability with respect to any Purchased Receivables, Contracts
related to those Purchased Receivables or other agreements, nor
shall any of them be obligated to perform any of the obligations of
the Seller under those agreements.
(c) Where an Early Amortisation Event is subsisting, the Seller for
valuable consideration grants to the Servicer an irrevocable power
of attorney, with full power of substitution, coupled with an
interest (being the absolute beneficial ownership of the Purchased
Receivable and Related Agreements that the Company will acquire upon
its acceptance of the relevant Sale Notices, which interest the
Servicer services on behalf of the Company), to take in the name of
the Seller all steps which are necessary or advisable to endorse or
negotiate or otherwise realise any right of any kind held or
transmitted by the Seller or transmitted or received by the Company
(whether or not from the Seller) that relates directly to any
Purchased Receivable.
9.7 FURTHER ACTION EVIDENCING PURCHASE
The Seller agrees that from time to time, at its expense, it will promptly
execute and deliver all further instruments and documents, and take all
further action that the Agent may reasonably request in order to perfect,
protect or more fully evidence the Purchase under a Future Agreement, or
to
Page 53
Receivables Purchase Agreement
enable the Company or the Agent to exercise or enforce any of their
respective rights under a Future Agreement. Without limitation, the Seller
will upon the request of the Agent execute such instruments or notices, as
may be necessary or appropriate to indicate the Company's title in the
Purchased Receivables. This clause does not require the Seller to:
(a) give notice to the Obligor requiring the payment of Purchased
Receivables to the Company;
(b) give notice of any assignment to Obligors unless an Early
Amortisation Event is subsisting; or
(c) execute any stampable instrument.
9.8 APPLICATION OF COLLECTIONS
(a) Any payment by an Obligor in respect of any indebtedness owed by it
to the Seller or any Approved Originator in relation to a Contract
(other than, in respect of any Contract referable to any NZ
Receivable, any payment of interest, finance or late payment charges
payable by the relevant Obligor in respect of that NZ Receivable)
shall, except as otherwise specified by such Obligor or otherwise
required by contract or law and unless the Agent instructs
otherwise, be applied as a Collection of any Purchased Receivable of
such Obligor to the extent of any amounts then due and payable under
such Purchased Receivable before such payment is applied to any
other indebtedness of such Obligor.
(b) The Seller's obligation under clause 9.8(a) is purely personal, and
does not create any Security Interest.
9.9 STAND-BY SERVICER
(a) If the Company becomes entitled to replace or remove a Servicer as
servicer then the Company may request the Back-Up Servicer to act as
temporary stand-in servicer. If the Company makes a request of the
Back-Up Servicer under this clause then the Company shall be deemed
to have represented and warranted to the Back-Up Servicer that it is
entitled to appoint the Back-Up Servicer as temporary stand-in
servicer in accordance with that request.
(b) The Back-Up Servicer must comply with any request made under clause
9.9(a), but only if the Back-Up Servicer is satisfied that:
(i) it has been or will be provided with access to all the
systems, data and documentation, and that the Back-Up Servicer
believes necessary to perform its duties as temporary stand-in
servicer; and
(ii) it will be adequately indemnified for each liability, subject
to clause 9.10, which it will or may incur as a result of
complying with that request.
(c) Each of the Seller, the Company and the Agent must use its
reasonable endeavours to procure that the Back-Up Servicer is
provided with the systems, data and documentation referred to above
as soon as is practicable after a request is made.
(d) If the Back-Up Servicer complies with a request made under clause
9.9(a) then it must act as temporary stand-in servicer until the
appointment of a Successor Servicer.
(e) Whilst the Back-Up Servicer acts a temporary stand-in servicer it
must service the Purchased Receivables:
Page 54
Receivables Purchase Agreement
(i) in accordance with the standards of an appropriately qualified
and prudent servicer of receivables similar to those
receivables which constitute the Purchased Receivables; and
(ii) in a manner which is not materially adversely different from
the manner in which the previous Servicer serviced the
Purchased Receivables;
(f) The Back-Up Servicer represents and warrants that it has the
resources, expertise and experience necessary to do so.
(g) The Back-Up Servicer may appoint a third party to undertake any of
its functions or responsibilities.
9.10 INDEMNITIES BY THE COMPANY
(a) The Company indemnifies the Back-Up Servicer against any liability
which the Back-Up Servicer or any attorney, delegate or contractor
appointed by it may incur or suffer as a result of or arising from
performing its obligations under or in connection with this
agreement or complying with a request under clause 9.9, except to
the extent that any such liability is due to the negligence or
misconduct of the Back-Up Servicer, or any of its attorney, delegate
or contractor appointed by it.
(b) The indemnity in clause 9.10(a) is a continuing indemnity and
survives any termination of this agreement.
(c) The Company is only required to indemnify the Back-Up Servicer when
there are actual and quantifiable losses arising from such
liability.
(d) The Back-Up Servicer is not liable for, and the Company releases and
holds the Back-Up Servicer harmless against:
(i) any defect in the title of the Company to any Purchased
Receivable;
(ii) acting in accordance with any request, direction or
instruction given by the Company;
(iii) any Liability caused by the Back-Up Servicer's reliance on any
data or document supplied to it by the Company;
(iv) any inability to perform, or deficiency in performing the
Back-Up Servicer's duties and obligations as temporary
stand-in servicer caused or contributed to directly and
indirectly by:
(A) the state of affairs of the previous Servicer, and its
books and records; or
(B) the Back-Up Servicer being unable to obtain data,
information and documents of the previous Servicer or
the Trustee or obtain access to the data, systems,
documentation or personnel which are reasonably
necessary for the Back-Up Servicer to perform those
duties and obligations; and
(v) the Back-Up Servicer is, for any purpose and at any time,
entitled to rely on, act upon, accept and regard as conclusive
and sufficient (without being in any way bound to call for
further evidence or information or being responsible for any
loss
Page 55
Receivables Purchase Agreement
that may be occasioned by such reliance, acceptance or regard)
any of the following:
(A) any representation or warranty given by the Company; and
(B) any data, document, certificate or statements supplied
by the Company or any officer, auditor or solicitor or
either of them.
10. EARLY AMORTISATION EVENTS; SERVICER TRANSFER EVENTS; TERMINATION; EVENTS
OF REVIEW
10.1 EARLY AMORTISATION EVENTS
The occurrence and continuation of any one of the following events shall
be an Early Amortisation Event (whether or not it is in the control of the
Seller or the Servicer (if the Servicer is the Seller or an Associate of
the Seller)) under each Transaction Document:
(a) (PAYMENTS) the failure on the part of the Seller or the Servicer (if
the Servicer is the Seller or an Associate of the Seller) to make
any payments within 1 Business Day of becoming due under any
Transaction Document, or 2 Business Days where the delay is the
result of a failure by the banking system to remit funds within 1
Business Day;
(b) (COVENANTS) the failure on the part of the Seller or the Servicer
(if the Servicer is the Seller or an Associate of the Seller) to
observe or perform any other term, undertaking, covenant, condition
or agreement provided for in this agreement or any Transaction
Document and the continuation of such failure for 14 Business Days
after an officer of the Seller or the Servicer (as the case may be)
who has a working knowledge of this agreement becomes aware of that
failure;
(c) (REPRESENTATIONS AND WARRANTIES) any representation or warranty made
or deemed to be made by the Seller or the Servicer (if the Servicer
is the Seller or an Associate of the Seller) under or in connection
with any Transaction Document or other information, report or
statement delivered under any Transaction Document is not true in
any material respect when made or repeated, and if in reasonable
opinion of the Agent that failure can be remedied, does not remedy
the failure within 14 days or receiving notice from the Agent
requiring remedy or the Seller or the Servicer (if the Servicer as
the Seller or an Associate of the Seller) first becoming aware of
the relevant circumstances (whichever is first);
(d) (INSOLVENCY EVENT) the occurrence of an Insolvency Event with
respect to the Seller or the Servicer (if the Servicer is the Seller
or an Associate of the Seller);
(e) (FINANCIAL INDEBTEDNESS) the Seller or the Servicer (if the Servicer
is the Seller or an Associate of the Seller) fails to pay any
Financial Indebtedness in excess of $500,000 or any interest or
premium on or any instalment of such Financial Indebtedness, when
due (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise) and such failure continues after
the applicable grace period, if any, specified in the agreement or
instrument relating to such Financial Indebtedness other than a
failure to pay contested in good faith.
(f) (MATERIAL ADVERSE EFFECT) any event or circumstance occurs which
materially adversely effects:
Page 56
Receivables Purchase Agreement
(i) the collectability of the Purchased Receivables;
(ii) the ability of the Servicer to collect the Purchased
Receivables or the Seller or the Servicer (if the Servicer is
the Seller or Associate of the Seller) to perform its
obligations under any Transaction Document; or
(iii) the business, assets or financial condition of the Seller or
the Servicer (if the Servicer is the Seller or an Associate of
the Seller);
(g) (CHANGE IN POLICY) a material change occurs to the Credit and
Collection Policy (other than any change reasonably required in the
ordinary course of business) without the prior consent of the Agent;
(h) (REGULATORY REQUIREMENTS) the Seller or the Servicer (if the
Servicer is the Seller or an Associate of the Seller) fails to
observe or comply with any law or official directive or request
(including one with respect to reserve, liquidity, capital adequacy,
special deposit or similar requirements) where that failure might
wholly or partially render illegal, prevent or restrict the
performance or effectiveness of the Transaction Documents or where
that failure might reasonably be expected to have a Material Adverse
Effect and does not remedy that failure within 14 days of the Seller
or the Servicer (as the case may be) becoming aware of that failure;
(i) (DEALING IN SHARES) the Seller or the Servicer (if the Servicer is
the Seller or an Associate of the Seller) deals with its share
capital other than in accordance with its rules and the Corporations
Xxx 0000;
(j) (CHARGE-OFF RECEIVABLES) the Outstanding Balance of Purchased
Receivables that are Charge-Off Receivables multiplied by the
Purchased Interest at that time is at any time more than 50% of the
Credit Reserve at that time; and
(k) (LIMIT) either:
(i) the Company Investment exceeds the Purchase Base; or
(ii) the Net Pool Balance at any time is less than the sum of the
Company's Investment and the Required Reserves (each as at
that time).
(l) (CROSS DEFAULT) an Event of Default (as that term is defined in the
Subscription Agreement) is subsisting (and has not been waived)
under the Subscription Agreement.
10.2 REMEDIES
(a) (OPTIONAL LIQUIDATION) If an Early Amortisation Event has occurred,
and is subsisting, the Agent shall, at the request, or may with the
consent, of the Company, by notice to the Seller declare the
Commitment Termination Date to have occurred.
(b) (PERFECTION) If an Early Amortisation Event is subsisting, the
Company may give notice of any Purchase of any Receivables under any
Future Agreement to the relevant Obligors.
(c) (ADDITIONAL REMEDIES) Upon any termination of the RPA Commitment
under this clause 10.2, each party shall, in addition to all other
rights and remedies under any Transaction Document or otherwise,
have all other rights and remedies provided under applicable laws,
which rights shall be cumulative. Without limitation, the occurrence
of an Early Amortisation Event shall not deny to the Company any
remedy in addition to termination of
Page 57
Receivables Purchase Agreement
the RPA Commitment to which the Company may be otherwise
appropriately entitled, whether at law or in equity.
10.3 OTHER CONSEQUENCES
(a) The Agent shall notify the Rating Agencies promptly when it becomes
aware that an Early Amortisation Event has occurred.
(b) Each of the Company and the Agent will be taken not to be aware of
an Early Amortisation Event unless:
(i) it receives notice in writing from another party stating that
an Early Amortisation Event has occurred and describing it; or
(ii) its officers who have responsibility for the transaction
become actually aware of it.
(c) If an Early Amortisation Event occurs the Company shall enter into a
swap under the Swap Agreement.
10.4 EVENT OF REVIEW
(a) At any time after an Event of Review, the Seller, Westpac and the
Company will, acting reasonably, review this agreement and amend
this agreement so that the terms and conditions are reflective of
the terms and conditions applied by the market to entities of
similar size, financial standing and performance, shareholding
ownership and credit profile of the Seller.
(b) If within 45 days of the date of notification an Event of Review,
the Seller, the Company and Westpac cannot agree (acting in their
absolute discretion) the terms and conditions to apply, Westpac may
give notice to the Seller and this agreement will then terminate 120
days after the giving of the notice.
10.5 COLLECTION ACCOUNT LETTER
In the event an Early Amortisation Event occurs and is subsisting with
respect to the Seller or the Servicer, or such an event is likely to occur
(in the sole opinion of the Agent), the Agent may forward any Collection
Account Letter to the Collection Bank noted in the Collection Account
Letter empowering the Agent to control payments from the Collection
Account.
10.6 TRADE CREDIT INSURANCE POLICIES
Once the RPA Commitment has been terminated, the Company's Investment is
$0 and the Seller has paid all outstanding fees to the Company, the Agent
shall co-operate with the Debenture Trustee (as defined in the
Subscription Agreement) to novate the Company's future entitlements from
the Insurance Policies to the Debenture Trustee.
11. INDEMNIFICATION
11.1 GENERAL INDEMNITY
Without limiting any other rights which any such person may have under any
Transaction Document or under applicable law, the Seller agrees to
indemnify each Indemnified Party, on demand, from
Page 58
Receivables Purchase Agreement
and against any and all Indemnified Amounts that each Indemnified Party
may sustain or incur as a direct or indirect consequence of:
(a) the breach of any representation or warranty made by the Seller or
the Servicer (or any of their officers) under or in connection with
any Transaction Document, any Determination Date Statement or any
other information or report delivered by the Seller or the Servicer
under any Transaction Document, which breach renders such
representation or warranty false or incorrect in any material
respect when made or deemed made;
(b) the failure by the Seller to comply with any applicable law, rule or
regulation with respect to any Purchased Receivable or the related
Contract, or the non-conformity of any Purchased Receivable or the
related Contract with any such applicable law, rule or regulation;
(c) the failure by the Seller to vest and maintain vested in the Company
the beneficial interest in respect of the Purchased Receivables,
free and clear of any Security Interest, other than a Security
Interest arising solely as a result of an act of the Company or the
Agent (including, for the avoidance of doubt, a Permitted Security
Interest), whether existing at the time of any Purchase or at any
time after that;
(d) any dispute, claim, offset (including the setting off of deposits
against any amount owing and unpaid under any Obligor's Purchased
Receivable) or defence of the Obligor to the payment of any
Purchased Receivables (including a defence based on such Receivables
or the related Contracts not being a legal, valid and binding
obligation of such Obligor enforceable against it in accordance with
its terms), or any exercise or enforcement by a supplier or any
other person of a Supplier's Security Interest whether or not that
Supplier's Security Interest is known to the Company or the Agent at
any time, or other claim resulting from services related to such
Receivable or the furnishing or failure to furnish such services;
(e) any failure of Tech Pacific Holdings Pty Limited or its Associate
acting in the capacity of the Seller or the Servicer or otherwise,
to perform its duties or obligations in accordance with the
provisions of clause 8 or 9; or
(f) any cost attributable to goods and services or similar tax that an
Indemnified Party may be required to pay in respect of any payment
by that Indemnified Party under any Related Agreement, reduced by
any Input Tax Credit or Reduced Input Tax Credit to which the
Indemnified Party is entitled in respect of that payment,
provided that the Seller does not indemnify an Indemnified Party from and
against any Indemnified Amounts:
(i) to the extent caused by the fraud, wilful default, negligence
or breach of an obligation under a Transaction Document of
that Indemnified Party except to the extent that any such
breach was caused or contributed to by the Seller;
(ii) in the case of a successor, transferee or participant of an
original party to this agreement, to the extent that the
Indemnified Amount exceeds the Indemnified Amount which would
have been suffered or incurred by the original party to this
agreement had there been no succession, transfer or
participation;
(iii) to the extent they relate to defaults by any Obligor under any
Receivable.
Page 59
Receivables Purchase Agreement
12. POWER OF ATTORNEY
12.1 SELLER APPOINTMENT
(a) The Seller irrevocably appoints each Authorised Officer of the
Company and the Agent severally its attorney to do anything which:
(i) the Seller and, if the Seller is the Servicer, the Servicer is
obliged, authorised or empowered to do under or in relation to
any Transaction Document or any Contract (including enforcing
any Purchased Receivable); or
(ii) the Company is authorised or empowered to do under any
Transaction Document, any Contract or any law but only at the
times that the Company would have been able to do it.
(b) An attorney may only act under this power if an Early Amortisation
Event is subsisting.
(c) Without limitation, the attorney may at any time delegate his powers
(including delegation).
(d) No attorney appointed under this agreement may act inconsistently
with this agreement.
12.2 AUSTRALIAN APPROVED ORIGINATOR APPOINTMENTS
(a) The Seller shall procure that each Australian Approved Originator
irrevocably appoints each Authorised Officer of the Seller, the
Company and the Agent severally its attorney to do anything which:
(i) that Australian Approved Originator is obliged, authorised or
empowered to do under or in relation to any Approved
Originator Sale Notice relating to that Approved Originator,
or any Contract (including enforcing any Purchased
Receivable); or
(ii) the Seller, the Company and the Agent are authorised or
empowered to do under any Originator Sale Notice relating to
that Approved Originator, any Contract or any law but only at
the times that the Seller, the Company and the Agent would
have been able to do it.
(b) An attorney may only act under this power if an Early Amortisation
Event is subsisting.
(c) Without limitation, the attorney may at any time delegate his powers
(including delegation), or appoint a sub-attorney.
(d) No attorney appointed under this agreement may act inconsistently
with this agreement.
12.3 NZ APPROVED ORIGINATOR APPOINTMENTS
(a) The Seller shall procure that each NZ Approved Originator
irrevocably appoints the Seller and each Authorised Officer of the
Seller severally its attorney to do anything which:
(i) that NZ Approved Originator is obliged, authorised or
empowered to do under or in relation to any Approved
Originator Sale Notice relating to that NZ Approved
Originator, or any Contract (including enforcing any Purchased
Receivable); or
(ii) the Seller is authorised or empowered to do under any
Originator Sale Notice relating to that Approved Originator,
any Contract or any law but only at the times that the Seller
would have been able to do it.
Page 60
Receivables Purchase Agreement
(b) An attorney may only act under this power if an Early Amortisation
Event is subsisting.
(c) Without limitation, the attorney may at any time delegate his powers
(including delegation), or appoint a sub-attorney.
(d) No attorney appointed under this agreement may act inconsistently
with this agreement.
(e) The Seller irrevocably appoints each Authorised Officer of the
Company and the Agent (each a Sub-Attorney) jointly and severally
its sub-attorney to do anything which the Seller is obliged,
authorised or empowered to do at any time under or in relation to
any NZ Originator Power of Attorney.
(f) The Seller covenants that:
(i) it will not exercise any NZ Originator Power of Attorney
without the Company's and the Agent's consent;
(ii) it will not revoke the sub-attorney granted under the clause
12.3(e); and
(iii) it will ratify anything done by a Sub-Attorney under this
agreement and any NZ Originator Power of Attorney.
13. THE AGENT
13.1 AUTHORISATION AND ACTION
The Company appoints the Agent to act as agent on its behalf with all
powers expressly delegated to the Agent by the Transaction Document,
together with such powers as are reasonably incidental to such powers and
the Agent accepts that appointment.
13.2 AGENT'S RELIANCE ETC.
Neither the Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or the
Agent under or in connection with any Transaction Document (including the
servicing, administering or collecting the Purchased Receivables as
Servicer pursuant to clause 9), except for its or their own negligence or
wilful default or fraud. Without limitation, the Agent:
(a) may consult with lawyers (including lawyers for the Seller or the
Servicer with the prior written consent from the Seller),
independent certified public accountants and other experts selected
by it and shall not be liable for any action taken or omitted to be
taken in good faith by it in accordance with the advice of such
counsel, accountants or experts;
(b) makes no warranty or representation to the Company or any other
holder of any interest in Purchased Receivables and shall not be
responsible to the Company or any such other holder for any
statements, warranties or representations made in or in connection
with any Transaction Document;
(c) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or
conditions of any Transaction Document on the part of the Seller or
to inspect the property (including the books and records) of the
Seller;
Page 61
Receivables Purchase Agreement
(d) shall not be responsible to the Company or any other holder of any
interest in Purchased Receivables for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of any
Transaction Document; and
(e) shall incur no liability under or in respect of any Transaction
Document by acting upon any notice (including notice by telephone),
consent, certificate or other instrument or writing (which may be by
facsimile or telex) reasonably believed by it to be genuine and
signed or sent by the proper party or parties.
13.3 AGENT AND ASSOCIATES
Westpac and any of its Associates may generally engage in any kind of
business with the Seller or any Obligor, any of their respective
Associates and any person who may do business with or own securities of
the Seller or any Obligor or any of their respective Associates, all as if
Westpac were not the Agent and without any duty to account therefor to the
Company or any other holder of an interest in Purchased Receivables.
14. ASSIGNMENT OF PURCHASED RECEIVABLES
14.1 RESTRICTIONS ON ASSIGNMENTS
(a) (RESTRICTION) Neither the Seller nor the Company may assign its
rights under any Transaction Document without the prior written
consent of the Agent and the affirmation of the Rating Agencies.
(b) (COMPANY) The Company may not assign any Purchased Receivable to any
person without the prior written consent of the Seller, however:
(i) the Company may assign, or grant a Security Interest in, any
Purchased Receivable to Westpac after having given notice to
the Seller; and
(ii) the Company may assign or grant a Security Interest in any
interest in, to and under any Purchased Receivable and any
Transaction Document to the Security Agent, and any successor
in such capacity to secure the Company's obligations under or
in connection with any SPV Loan Agreement, the Liquidity
Facility Agreement, the Enhancement Agreement and certain
other obligations of the Company incurred in connection with
the funding of the Company's Investment.
(c) The Company agrees to advise the Agent within fifteen Business Days
after notice to the Seller of any proposed assignment by the Company
of any Purchased Receivable, not otherwise permitted under paragraph
(b), of the Seller's consent or non-consent to such assignment. If
the Seller does not consent to such assignment, the Company may
immediately assign such Purchased Receivable to Westpac or any
Associate of Westpac. All such assignments shall be upon such terms
and conditions as the Company and the assignee may mutually agree
except that Westpac or any Associate of Westpac may not further
assign such Purchased Receivables.
Page 62
Receivables Purchase Agreement
14.2 RIGHTS OF ASSIGNEE
Upon assignment by the Company of any Purchased Receivable in accordance
with this clause 14, the assignee receiving such assignment shall have all
of the rights and, if applicable, the obligations of the Company under any
Transaction Document with respect to that Purchased Receivable.
14.3 RIGHTS OF THE SECURITY AGENT
The Seller agrees that, upon notice to the Seller, the Security Agent may
exercise all the rights of the Agent then existing under any Transaction
Document, with respect to any Purchased Receivable, and Collections with
respect thereto, which are owned by the Company, and all other rights and
interests of the Company in, to and under any Future Agreement.
15. LIMITED RECOURSE
15.1 LIMIT AND RELEASE
(a) (LIMIT) Notwithstanding any other provision of any Transaction
Document the Company shall have no liability in respect of any
amount due by it to the Seller under or in connection with any
Transaction Document, except:
(i) to the extent it (or some other person on its behalf) receives
or recovers amounts due to it for payment to the Seller as a
result of a drawing under a SPV Loan Agreement following the
issuance of Commercial Paper Notes or drawings under the
Liquidity Facility Agreement; or
(ii) in the case of an amount payable to the Seller under clause
2.1(j), to the extent it is received or recovered in
accordance with clause 4.1(b), and an amount received or
recovered in accordance with clause 4.2.
(b) (RELEASE) The Seller waives all claims (including without limitation
in respect of misleading and deceptive conduct) it may have against
the Company or any of its officers, employees or agents under or in
connection with the Transaction Documents to the extent to which the
Company is not liable under paragraph (a).
(c) (ABSOLUTE RELEASE) Without limiting paragraph (b), with effect from
the date 12 calendar months after the termination of the entire RPA
Commitment, each party irrevocably releases each other party from
all of its obligations (if any) (including, without limitation, any
payment obligations) under any Future Agreement.
15.2 UNRESTRICTED REMEDIES
Nothing in clause 15.1 limits the Seller in:
(a) obtaining or taking any proceedings to obtain an injunction or other
order to restrain any breach of any Transaction Document by any
party; or
(b) obtaining or taking any proceedings to obtain declaratory relief in
relation to any provision of any Transaction Document in relation to
any party.
Page 63
Receivables Purchase Agreement
15.3 RESTRICTED REMEDIES
Except as provided in clause 15.2, the Seller shall not, to the extent to
which the Company is not liable under clause 15.1:
(a) (JUDGMENT) apply or take any proceedings for the obtaining of a
judgment for the payment of money or damages by the Company;
(b) (WINDING UP) apply or take any proceedings for the winding up of the
Company;
(c) (EXECUTION) levy or enforce any distress or other execution to on or
against any assets of the Company or take any proceedings for that
purpose;
(d) (COURT APPOINTED RECEIVER) apply to take any proceedings for the
appointment of a receiver by a court to any of the assets of the
Company; or
(e) (SET-OFF OR COUNTERCLAIM) exercise or seek to exercise or take any
proceedings for the exercising of any right of set-off or
counterclaim against the Company,
and the Seller waives its rights in respect of those applications and
proceedings.
15.4 SURVIVAL
This clause 15 survives termination or discharge of any Transaction
Document.
16. INTEREST ON OVERDUE AMOUNTS
16.1 ACCRUAL
Interest accrues on each unpaid amount which is due and payable by the
Seller or the Servicer under or in respect of any Transaction Document
(including interest payable under this clause):
(a) on a daily basis up to the date of actual payment from (and
including) the due date or, in the case of an amount payable by way
of reimbursement or indemnity, the date of disbursement or loss, if
earlier;
(b) both before and after judgment (as a separate and independent
obligation); and
(c) at the Alternate Base Rate.
This clause does not apply in relation to the extent that the Collections
on any Remittance Date are not sufficient to pay the Carrying Costs and
the Retention Amount on that Remittance Date.
16.2 PAYMENT
The relevant Seller or the Servicer (as the case may be) shall pay
interest accrued under this clause on demand and on the last Business Day
of each calendar month.
17. MISCELLANEOUS
17.1 NOTICES
Unless otherwise provided in this agreement, all notices, requests,
demands, consents, approvals, agreements or other communications to or by
a party to this agreement:
(a) must be in writing;
Page 64
Receivables Purchase Agreement
(b) must be signed by an Authorised Officer of the sender; and
(c) will be taken to be duly given or made:
(i) (in the case of delivery in person or by post or facsimile
transmission) when delivered, received or left at the address
of the recipient shown in this agreement or to any other
address which it may have notified the sender; or
(ii) (in the case of a telex) on receipt by the sender of the
answerback code of the recipient at the end of transmission,
but if delivery or receipt is on a day on which business is not
generally carried on in the place to which the communication is sent
or is later than 4 pm (local time), it will be taken to have been
duly given or made at the commencement of business on the next day
on which business is generally carried on in that place.
17.2 SEVERABILITY CLAUSE
Any provisions of any Transaction Document other than clause 15 (and
similar provisions in the other Transaction Documents) which are
prohibited or unenforceable in any jurisdiction is ineffective to the
extent of the prohibition or unenforceability. That does not invalidate
the remaining provisions of that Transaction Document nor affect the
validity or enforceability of that provision in any other jurisdiction.
17.3 AMENDMENTS
This agreement and the rights and obligations of the parties under this
agreement may only be changed by an instrument in writing signed by each
party to this agreement if at least 15 days prior written notice is given
to the Rating Agencies.
17.4 GOVERNING LAW AND JURISDICTION
Each Transaction Document is governed by the laws of New South Wales. Each
party submits to the non-exclusive jurisdiction of courts exercising
jurisdiction there.
17.5 SURVIVAL OF REPRESENTATIONS AND INDEMNITIES
(a) All representations and warranties in a Transaction Document survive
the execution and delivery of the Transaction Documents.
(b) Unless otherwise stated each indemnity reimbursement or similar
obligation in any Transaction Document:
(i) is a continuing obligation;
(ii) is a separate and independent obligation;
(iii) is payable on demand; and
(iv) survives termination or discharge of this agreement and each
Future Agreement.
17.6 NO BANKRUPTCY PETITION AGAINST THE COMPANY
The Seller and the Agent covenant and agree that prior to the date which
is one year and one day after the payment in full of all Commercial Paper
Notes it will not institute against, or join any other person in
instituting against, the Company any liquidation proceedings.
Page 65
Receivables Purchase Agreement
17.7 SET-OFF
(a) (SELLER) Subject to any mandatory laws to the contrary which cannot
be contracted out of and except as permitted by clauses 2.1(j),
4.1(b)(iv), 4.2(a)(ii) and 4.8, the Seller irrevocably and
unconditionally waives all right of set-off that it may have under
contract, applicable law or otherwise with respect to any funds or
monies of the Company at any time held by or in the possession of
the Seller.
(b) (AGENT) The Seller irrevocably authorises Westpac to apply following
an Early Amortisation Event any credit balance in any of its
accounts with any branch of such person towards satisfaction of any
sum then due and payable by it to such person under and in relation
to any Future Agreement.
(c) (INDEMNITY) If, notwithstanding clause 17.7(a), for any reason the
Seller exercises, or is entitled to exercise, a right of set-off
with respect to any funds or monies of the Company, the Seller shall
indemnify the Company on demand and shall pay the Company any moneys
which it sets-off on demand.
17.8 COSTS AND EXPENSES
(a) (COSTS AND EXPENSES) On demand the Seller shall reimburse the
Company or the Agent for the reasonable expenses of the Company or
the Agent (as applicable) in relation to:
(i) the preparation, execution and completion of the Transaction
Documents or any subsequent consent, approval, waiver or
amendment (it being acknowledged that the parties have agreed
in writing the expenses insofar as they relate to the
preparation, execution and completion of the Transaction
Documents); and
(ii) any actual or contemplated enforcement of any Transaction
Document, the actual or contemplated exercise, preservation or
consideration of any rights (other than any right of
assignment conferred by clause 14), powers or remedies under
any Transaction Document or in relation to the Purchased
Receivables; and
(iii) any inquiry by a Governmental Agency concerning the Seller or
the Servicer or a transaction or activity the subject of any
Transaction Document,
including expenses reasonably incurred in retaining consultants to
evaluate matters of material concern to the Company or the Agent on
a full indemnity basis (but excluding all expenses and costs
incurred in connection with the time of its executives or in house
lawyers or in connection with any tombstone advertisement referred
to in clause 18.1(b)).
(b) (STAMP DUTY)
(i) In addition, the Seller shall, subject to this clause 17.8(b),
pay all stamp, transaction, registration and similar Taxes
(including fines and penalties) which may be payable or
determined to be payable in relation to the execution,
delivery, performance or enforcement of any Transaction
Document or any payment or receipt or any other transaction
contemplated by any Transaction Document.
(ii) Those Taxes include financial institutions duty, debits tax or
other Taxes payable by return and Taxes passed on to the
Company or the Agent by a bank or financial institution but,
for the avoidance of doubt, do not include GST.
Page 66
Receivables Purchase Agreement
(iii) On demand the Seller shall indemnify the Company and the Agent
against any liability resulting from delay or omission to pay
those Taxes except to the extent the liability results from
failure by the Company or the Agent to pay any Tax after
having been put in funds to do so by the Seller.
(iv) The Seller is not obliged to pay any stamp, transaction,
registration or similar Taxes (including fines and penalties)
which may be payable or determined to be payable in relation
to any assignment by the Company pursuant to Clause 14 of this
agreement.
17.9 WAIVERS; REMEDIES CUMULATIVE
(a) No failure on the part of the Agent or the Company to exercise and
no delay in exercising any right, power or remedy under any
Transaction Document operates as a waiver. Nor does any single or
partial exercise of any right, power or remedy preclude any other or
further exercise of that or any other right, power or remedy.
(b) The rights, powers and remedies provided to the Agent and the
Company in the Transaction Documents are in addition to, and do not
exclude or limit, any right, power or remedy provided by law.
18. CONFIDENTIALITY
18.1 CONFIDENTIALITY
(a) Each party to this agreement acknowledges that the Agent regards the
structure of the transactions contemplated by the Transaction
Documents to be proprietary, and each such party severally agrees
that:
(i) subject to paragraph(ii), it will not disclose without the
prior consent of the Agent (other than to the directors,
employees, auditors, counsel, affiliates or Related
Corporations (collectively, REPRESENTATIVES) of such party,
each of whom shall be informed by such party of the
confidential nature of the Information and of the terms of
this clause 18:
(A) any information regarding, or copies of, any Transaction
Document or any transaction contemplated by any
Transaction Document;
(B) any information regarding the organisation or business
of the Company, Sydney Corp or Waratah Securities
generally; or
(C) any information regarding Westpac which information is
furnished by Westpac to such party and which is
designated by Westpac to such party in writing or
otherwise as confidential or not otherwise available to
the general public,
(the information referred to in Clauses (A), (B) and (C) is
collectively referred to as the INFORMATION); and
(ii) such party may disclose any such Information:
Page 67
Receivables Purchase Agreement
(A) to any other party to this agreement for the
purposes contemplated by this agreement;
(B) as may be required by any Governmental Agency;
(C) in order to comply with any law, order,
regulation, regulatory request or ruling
applicable to such party (including, without
limitation, any request or requirement of the
Australian Stock Exchange); or
(D) subject to clause 18(c), in the event such party
is legally compelled (by interrogatories, requests
for information or copies, subpoena, civil
investigative demand or similar process) to
disclose any such Information;
(E) to the extent it is publicly available or becomes
publicly available other than as a result of
breach of this clause 18.1;
(F) to any person in the course of an offer by any of
such party's shareholders to sell their shares in
such party, provided that such information is
disclosed only after the person has executed and
delivered to the Agent a written agreement to
comply with, and be bound by, the provisions of
this clause 18.1 as if it were a party to this
agreement; or
(G) in or in connection with a prospectus or other
document relating to an offer of shares in the
capital or other securities of such party or any
of its Related Corporation.
(iii) it will use the Information solely for the purposes of
evaluating, administering and enforcing the transactions
contemplated by Transaction Documents and making any
necessary business judgments with respect thereto; and
(iv) it will, upon demand, return (and cause each of its
representatives to return) to the Agent all documents or
other written material received from the Agent in
connection with (a)(i)(A) above and all copies thereof
made by such party which contain the Information.
(b) Notwithstanding any provision in this agreement to the
contrary, the Seller and the Servicer agree that the Agent may
refer to the Seller or Servicer's name in connection with the
issuance of any tombstone advertisement that refers to the
securitisation contemplated by this agreement.
(c) This clause 18 shall be inoperative as to such portions of the
Information which are or become generally available to the
public or such party on a non-confidential basis from a source
other than Westpac or were known to such party on a
non-confidential basis prior to its disclosure by Westpac.
(d) In the event that any party or anyone to whom such party or
its representatives transmits the Information is requested or
becomes legally compelled (by interrogatories, requests for
information or documents, subpoena, civil investigative demand
or similar process) to disclose any of the Information, such
party will:
Page 68
Receivables Purchase Agreement
(i) provide the Agent with prompt written notice so that the Agent
may seek a protective order or other appropriate remedy and/or
waive compliance with the provisions of this clause 18;
(ii) unless the Agent waives compliance by such party with the
provisions of this clause 18, make a timely objection to the
request or confirmation to provide such Information on the
basis that such Information is confidential and subject to the
agreements contained in this clause 18, provided that such
party is not required to make such an objection if:
(A) the objection has no reasonable prospect of success; or
(B) that party is not indemnified to its satisfaction in
respect of those costs by the Agent; and
(iii) comply with any protective order or other appropriate remedy.
In the event that such protective order or other remedy is not
obtained, or the Agent waives compliance with the provisions of this
clause 18, such party will furnish only that portion of the
Information which is legally required to furnish and will exercise
such party's best efforts to obtain reliable assurance that
confidential treatment will be accorded the Information.
(e) This clause 18 shall survive termination of this agreement and the
Transaction Documents.
18.2 COUNTERPARTS
This agreement may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
19. GST
19.1 INTERPRETATION
Words or expressions used in this clause 19 which are not defined in
clause 1.1 of this agreement have the same meaning as in the GST
Legislation.
19.2 CONSIDERATION IS GST EXCLUSIVE
Any consideration to be paid or provided to the Seller for a supply made
by the Seller under or in connection with this agreement does not include
an amount in respect of GST.
19.3 GROSS UP OF CONSIDERATION
If GST is payable by the Seller (or, if the Seller is in a GST group, the
representative member of that GST group) in respect of any taxable supply
made by the Seller under or in connection with this agreement:
(a) the consideration payable or to be provided for that taxable supply
under this agreement but for the application of this clause is
increased by, and the recipient of the supply ('RECIPIENT') must
also pay to the Seller, an amount ('GST AMOUNT') equal to the GST
payable in respect of that taxable supply, but only to the extent to
which the Recipient (or, if the Recipient is in a GST group, the
representative member of that GST Group) receives
Page 69
Receivables Purchase Agreement
an Input Tax Credit or Reduced Input Tax Credit in respect of the
Recipient's acquisition of that taxable supply; and
(b) the GST Amount must be paid to the Seller by the Recipient without
set off, deduction or requirement for demand within 5 Business days
following the date the Recipient receives the relevant GST refund or
otherwise receives benefit of the Input Tax Credit or Reduced Input
Tax Credit provided that the Seller has provided the Recipient with
a valid tax invoice in respect of the relevant taxable supply.
19.4 REIMBURSEMENTS (NET DOWN)
If a payment to a party under this agreement (except for any Instalment)
is a reimbursement or indemnification, calculated by reference to a loss,
cost or expense incurred by that party, then the payment will be reduced
by the amount of any Input Tax Credit or Reduced Input Tax Credit to which
that party (or, if that party is in a GST group, the representative member
of that GST Group) is entitled for that loss, cost or expense.
20. PRIVACY
The Seller must, where reasonably practicable, make all disclosures the
Company would be required to make under the Privacy Xxx 0000 in order to
use the Personal Information to perform the Company's obligations under
the Transaction Documents, the Receivables, the Contracts and the Related
Agreements.
21. CODE OF BANKING PRACTICE (2003)
The Code of Banking Practice (2003) does not apply to this agreement or
any banking service provided under it.
EXECUTED as an agreement
SELLER
SIGNED on behalf of TECH PACIFIC HOLDINGS PTY
LIMITED by its attorney in the presence of:
/s/ Xxxx Xxxxxx /s/ Xxxx Xxx
---------------------- -----------------------
Signature Signature
Xxxx Xxxxxx, Partner Xxxx Xxx, Witness
---------------------- -----------------------
Print Name Print Name
Page 70
Receivables Purchase Agreement
__________________________ __________________________________
Office held Office held
COMPANY
SIGNED on behalf of WARATAH RECEIVABLES
CORPORATION PTY LIMITED by its attorney
in the presence of:
/s/ Xxxx Xxxxxxx /s/ Xxxx Xxx
-------------------------- --------------------------
Signature Signature
Xxxx Xxxxxxx, Partner Xxxx Xxx, Witness
-------------------------- --------------------------
Print Name Print Name
AGENT & BACK-UP SERVICER
SIGNED on behalf of WESTPAC BANKING
CORPORATION by its attorney
in the presence of:
/s/ Xxxx Xxxxxxx /s/ Xxxx Xxx
-------------------------- --------------------------
Signature Signature
Xxxx Xxxxxxx, Partner Xxxx Xxx, Witness
-------------------------- --------------------------
Print Name Print Name
Page 71
