EXHIBIT 10.24
Bank One, NA
ARBN 065 752 918
ABN 31 065 752 918
Xxxxx 00, 00 Xxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxx Xxxxx 0000
Telephone: 00 0 0000 0000
Facsimile: 61 2 9223 1823
13 December, 2001
Xx. Xxxx Xxxxxxx
Financial Controller
Daisytek Australia Pty Ltd
Xxxx 0, 000 Xxxxxx Xxxx
XXXXXXXXXX XXX 0000
Dear Xxxx,
CREDIT AGREEMENT FOR A$20,000,000 AVAILABLE TO
DAISYTEK AUSTRALIA PTY LTD (THE "BORROWER") GUARANTEED BY DAISYTEK, INC. AND
DAISYTEK INTERNATIONAL CORPORATION (THE "GUARANTOR")
We are pleased to advise the following amendments be made to your Credit
Agreement (the "Agreement") available to the Borrower with Bank One, NA (the
"Bank") as originally documented 18 DECEMBER 2000 and subsequently amended from
time to time:
1. CLAUSE 1.1 DEFINITIONS
"TERMINATION DATE" means January 1, 2003.
2. APPENDIX A has been amended to read:
APPENDIX A
FACILITY PRICING: Facility pricing to be determined by the following
grid of Total Debt to EBITDA with Total Debt to
EBITDA definition to match leverage covenant included
in the Term Sheet. Current pricing is set at Level 5.
The calculation of ratios is based on the accounts of
Daisytek, Inc. as stipulated in the Credited
Agreement between Daisytek, Inc. and various banks
dated December 18, 2000 as amended.
PRICING GRID
XXXXX 0 XXXXX 0 XXXXX 0 XXXXX 0 XXXXX 5
--------------------- ------------------ ------------------- ------------------ ------------------- ------------------
TOTAL < 1.0 >=1.0 < 1.50 >=1.50 < 2.0 >=2.0 < 2.5 >=2.5 < 3.00
DEBT/EBITDA
--------------------- ------------------ ------------------- ------------------ ------------------- ------------------
FACILITY FEE 32.5 bps 37.5 bps 42.5 bps 50.0 bps 50.0 bps
--------------------- ------------------ ------------------- ------------------ ------------------- ------------------
ADVANCE MARGIN 142.5 bps 150.0 bps 170.0 bps 187.5 bps 212.5 bps
--------------------- ------------------ ------------------- ------------------ ------------------- ------------------
ALL-IN COST 175.0 bps 187.5 bps 212.5 bps 237.5 bps 262.5 bps
--------------------- ------------------ ------------------- ------------------ ------------------- ------------------
bps= basis points
Bank One, NA
ARBN 065 752 918
ABN 31 065 752 918
Xxxxx 00, 00 Xxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxx Xxxxx 0000
Telephone: 00 0 0000 0000
Facsimile: 61 2 9223 1823
ACCEPTANCE
If the terms and conditions of this letter are acceptable to you, please arrange
for the duplicate of this letter to be executed and returned to the Bank by 1
January 2002. Any request by the Borrower for funds under the Agreement will
constitute acceptance of the amendments.
For and on behalf of
BANK ONE, NA
XXXXXXX X. XXXXXX
First Vice President
General Manager - Corporate Banking
THE BORROWER AGREES AND ACCEPTS THE AMENDMENTS TO THE FACILITY ON THE TERMS AND
CONDITIONS DESCRIBED IN THE CREDIT AGREEMENT LETTER DATED 13 DECEMBER 2001.
THE COMMON SEAL OF DAISYTEK AUSTRALIA PTY LTD
Was hereunto affixed in the presence of:
Xxxxx Xxxxxxxx /s/ XXXXX XXXXXXXX Dec. 15, 2001
-------------------- --------------------------- ---------------------
Name (Director) Signature Date
Xxxx Xxxxxxx /s/ XXXX XXXXXXX
-------------------- ---------------------------
Name (Director) Signature
CC: Xxxxx Xxxxxxxx, CFO, Daisytek International Xxxx Xxxxxxx, Treasurer,
Daisytek International
GUARANTY
GUARANTY: To induce Bank One, NA, a national banking association having its
principal office in Chicago, Illinois, directly or through any of its branches,
offices, subsidiaries or affiliates (collectively, the "Lender"), in its sole
discretion, to make loans or extend or continue credit, including letters of
credit and Rate Management Transactions (as defined below), to DAISYTEK
AUSTRALIA PTY LTD, a CORPORATION, and existing under the laws of AUSTRALIA (the
"Borrower"), whether to Borrower alone or to the Borrower and others, and
because the undersigned (the "Guarantor") has determined that executing this
Guaranty is in its interest and to its financial benefit, the Guarantor, as
primary obligor and not merely as surety, absolutely and unconditionally
guarantees to the Lender the prompt payment when due, whether at stated
maturity, upon acceleration or otherwise, and at all times thereafter, of any
and all existing and future indebtedness, obligation and liability of every
kind, nature and character, direct or indirect, absolute or contingent
(including, without limitation, all renewals, extensions and modifications
thereof, and all interest, fees and other monetary obligations incurred or
accrued during the pendency of any bankruptcy, insolvency, receivership or other
similar proceeding, regardless of whether allowed or allowable in such
proceeding), of the Borrower to the Lender howsoever and whensover created,
arising, evidenced or acquired (the "Obligations"). The Guarantor further agrees
to pay all costs and expenses including, without limitation, all court costs and
attorneys' and paralegal's fees (including allocated costs of in-house counsel
and paralegals) and expenses paid or incurred by the Lender in endeavoring to
collect all or any part of the Obligations from, or in prosecuting any action
against, the Borrower, the Guarantor or any other guarantor of all or any part
of the Obligations (such costs and expenses, together with the Obligations,
collectively the "Guaranteed Debt"). The Guarantor further agrees that the
Guaranteed Debt may be extended or renewed in whole or in part without notice to
or further assent from it, and that it remains bound upon its guarantee
notwithstanding any such extension or renewal. The term "Rate Management
Transaction", as used herein, means any transaction (including an agreement with
respect thereto) now existing or hereafter entered into between Borrower and
Lender which is a rate swap, basis swap, forward rate transaction, commodity
swap, commodity option, equity or equity index swap, equity or equity index
option, bond option, interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collar transaction, forward transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with respect to any of
these transactions) or any combination thereof, whether linked to one or more
interest rates, foreign currencies, commodity prices, equity prices or other
financial measures.
NATURE OF GUARANTY: This Guaranty is a guaranty of payment and not of
collection. The Guarantor waives any right to require the Lender to xxx the
Borrower, any other guarantor, or any other person obligated for all or any part
of the Guaranteed Debt, or otherwise to enforce its payment against any
collateral securing all or any part of the Guaranteed Debt.
NO DISCHARGE OR DIMINISHMENT OF GUARANTY: Except as otherwise provided herein
and to the extent provided herein, the obligations of the Guarantor hereunder
are unconditional and absolute and not subject to any reduction, limitation,
impairment or termination for any reason (other than the indefeasible payment in
full in cash of the Guaranteed Debt), including: any claim of waiver, release,
extension, renewal, settlement, surrender, alteration, or compromise of any of
the Guaranteed Debt, by operation of law or otherwise; any change in the
corporate existence, structure or ownership of the Borrower or any other
guarantor of or other person liable for any of the Guaranteed Debt, or any
insolvency, bankruptcy, reorganization or other similar proceeding affecting the
Borrower, or any other guarantor of or other person liable for any of the
Guaranteed Debt, or their assets or any resulting release or discharge of any
obligation of the Borrower, or any other guarantor of or other person liable for
any of the Guaranteed Debt; or the existence of any claim, setoff or other
rights which the Guarantor may have at any time against the Borrower, any other
guarantor of the Guaranteed Debt, the Lender, or any other person, whether in
connection herewith or in any unrelated transactions. The obligations of the
Guarantor hereunder are not subject to any defense or setoff, counterclaim,
recoupment, or termination whatsoever by reason of the invalidity, illegality,
or unenforceability of any of the Guaranteed Debt or otherwise, or any provision
of applicable law or regulation purporting to prohibit payment by Borrower or
any other guarantor of or other person liable for any of the Guaranteed Debt of
the Guaranteed Debt or any part thereof. Further, the obligations of the
Guarantor hereunder are not discharged or impaired or otherwise affected by the
failure of the Lender to assert any claim or demand or to enforce any remedy
with respect to all or any part of the Guaranteed Debt; any waiver or
modification of or supplement to any provision or any agreement relating to the
Guaranteed Debt; any release, non-perfection, or invalidity of any indirect or
direct security for the obligations of the Borrower for all or any part of the
Guaranteed
Debt or any obligations of any other guarantor of or other person liable for any
of the Guaranteed Debt, or any action or failure to act by Lender with respect
to any collateral securing any part of the Guaranteed Debt; any default, failure
or delay, willful or otherwise, in the payment or performance of any of the
Guaranteed Debt; or any other circumstance, act, omission or delay that might in
any manner or to any extent vary the risk of the Guarantor or that would
otherwise operate as a discharge of the Guarantor as a matter of law or equity
(other than the indefeasible payment in full in cash of the Guaranteed Debt).
DEFENSES WAIVED: To the fullest extent permitted by applicable law, the
Guarantor waives any defense based on or arising out of any defense of the
Borrower or the unenforceability of all or any part of the Guaranteed Debt from
any cause, or the cessation from any cause of the liability of the Borrower,
other than the indefeasible payment in full in cash of the Guaranteed Debt.
Without limiting the generality of the foregoing, the Guarantor irrevocably
waives acceptance hereof, presentment, demand, protest and, to the fullest
extent permitted by law, any notice not provided for herein, as well as any
requirement that at any time any action be taken by any person against the
Borrower, any other guarantor of any of the Guaranteed Debt, or any other
person. The Lender may, at its election, foreclose on any security held by it by
one or more judicial or nonjudicial sales, accept an assignment of any such
security in lieu of foreclosure or otherwise act or fail to act with respect to
any collateral securing all or a part of the Guaranteed Debt, compromise or
adjust any part of the Guaranteed Debt, make any other accommodation with the
Borrower, any other guarantor or any other person liable on any of the
Guaranteed Debt or exercise any other right or remedy available to it against
the Borrower, any other guarantor or any other person liable on any of the
Guaranteed Debt, without affecting or impairing in any way the liability of the
Guarantor under this Guaranty except to the extent the Guaranteed Debt has been
fully and indefeasibly paid in cash. To the fullest extent permitted by
applicable law, the Guarantor waives any defense arising out of any such
election even though that election may operate, pursuant to applicable law, to
impair or extinguish any right of reimbursement or subrogation or other right or
remedy of the Guarantor against the Borrower, any other guarantor or any other
person liable on any of the Guaranteed Debt, as the case may be, or any
security.
FOREIGN CURRENCY: The specification of payment in a specific currency at a
specific place and time pursuant to the documentation relating to the Guaranteed
Debt is essential. That currency or those currencies are also the currency of
account and payment under this Guaranty. If the Guarantor is unable for any
reason to effect payment of a specific currency (other than United States
currency) as required by the preceding sentence or if the Guarantor defaults in
the payment when due of any amount of a specific currency (other than United
States currency) under this Guaranty, the Lender may, at its option, require
such payment to be made to the Head Office of the Lender in the equivalent
amount in United States currency at the Lender's then current selling rate for
electronic transfers of that currency to the place or places where the
Guaranteed Debt was payable. In the event that any payment, whether pursuant to
a judgment or otherwise, does not result in payment of the amount of currency
due under this Guaranty, upon conversion to the currency of account and transfer
to the place specified for payment, the Lender has an independent cause of
action against the Guarantor for the deficiency.
RIGHTS OF SUBROGATION: The Guarantor will not assert any right, claim or cause
of action, including, without limitation, a claim of subrogation, contribution
or indemnification that it has against the Borrower, any person liable on the
Guaranteed Debt, or any collateral, until the Borrower and the Guarantor have
fully performed all their obligations to the Lender.
REINSTATMENT; STAY OF ACCELERATION: If at any time any payment of any portion of
the Guaranteed Debt is rescinded or must otherwise be restored or returned upon
the insolvency, bankruptcy, or reorganization of the Borrower or otherwise, the
Guarantor's obligations under this Guaranty with respect to that payment shall
be reinstated at such time as though the payment had not been made and whether
or not the Lender is in possession of this Guaranty. If acceleration of the time
for payment of any of the Guaranteed Debt is stayed upon the insolvency,
bankruptcy or reorganization of the Borrower, all such amounts otherwise subject
to acceleration under the terms of any agreement relating to the Guaranteed Debt
shall nonetheless be payable by the Guarantor forthwith on demand by the Lender.
INFORMATION: The Guarantor assumes all responsibility for being and keeping
itself informed of the Borrower's financial condition and assets, and of all
other circumstances bearing upon the risk of nonpayment of the Guaranteed Debt
and the nature, scope and extent of the risks that the Guarantor assumes and
incurs under this
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Guaranty, and agrees that the Lender does not have any duty to advise the
Guarantor of information known to it regarding those circumstances or risks.
TERMINATION: The Lender may continue to make loans or extend credit to the
Borrower based on this Guaranty until five days after it receives written notice
of termination from the Guarantor. Notwithstanding receipt of any such notice,
the Guarantor will continue to be liable to the Lender for any Guaranteed Debt
created, assumed or committed to prior to the fifth day after receipt of the
notice, and all subsequent renewals, extensions, modifications and amendments
with respect to, or substitutions for, all or any part of that Guaranteed Debt.
TAXES: All payments of the Guaranteed Debt will be made by the Guarantor free
and clear of and without deduction for or on account of any and all present or
future taxes, levies, imposts, duties, charges, deductions or withholdings of
whatever nature imposed by any governmental authority with respect to such
payments, and any and all liabilities with respect to the foregoing, but
excluding franchise taxes and taxes imposed on overall net income of the Lender
by the United States of America or the jurisdiction in which Lender's applicable
Lending Installation is located (collectively, "Taxes"). If the Guarantor is
required by law to deduct any Taxes from or in respect of any sum payable to the
Lender under this Guaranty, (a) the sum payable must be increased as necessary
so that after making all required deductions (including deductions applicable to
additional sums payable under this provision) the Lender receives an amount
equal to the sum it would have received had no such deductions been made, (b)
the Guarantor must then make such deductions, and must pay the full amount
deducted to the relevant authority in accordance with applicable law, and (c)
the Guarantor must furnish to the Lender within 45 days after their due date
certified copies of all official receipts evidencing payment thereof.
LIMITATION: Regardless of the amount of Guaranteed Debt outstanding at any time,
the Guarantor's obligations under this Guaranty to the Lender shall not exceed
the principal sum of A$20,000,000 (AUSTRALIAN TWENTY MILLION DOLLARS) FOR THE
REVOLVING CREDIT FACILITY AND US$1,000,000 (US ONE MILLION DOLLARS) FOR THE
FOREIGN EXCHANGE FACILITY plus accrued interest and all costs, fees and expenses
(including attorneys' fees) incurred in collecting or enforcing the Guarantor's
obligations under this Guaranty.
SEVERABIILITY: The provisions of this Guaranty are severable, and in any action
or proceeding involving any state corporate law, or any state, federal or
foreign bankruptcy, insolvency, reorganization or other law affecting the rights
of creditors generally, if the obligations of the Guarantor under this Guaranty
would otherwise be held or determined to be avoidable, invalid or unenforceable
on account of the amount of the Guarantor's liability under this Guaranty, then,
notwithstanding any other provision of this Guaranty to the contrary, the amount
of such liability shall, without any further action by the Guarantor or the
Lender, be automatically limited and reduced to the highest amount that is valid
and enforceable as determined in such action or proceeding. This Section with
respect to the maximum liability of the Guarantor is intended solely to preserve
the rights of the Lender to the maximum extent not subject to avoidance under
the applicable law, and neither the Guarantor nor any other person or entity
shall have any right or claim under this Section with respect to such maximum
liability of Guarantor, except to the extent necessary so that the obligations
of the Guarantor hereunder shall not be rendered voidable under applicable law.
The Guarantor agrees that the Guaranteed Debt may at any time and from time to
time exceed the maximum liability of the Guarantor without impairing this
Guaranty or affecting the rights and remedies of the Lender hereunder, provided
that, nothing in this sentence shall be construed to increase the Guarantor's
obligations hereunder beyond its maximum liability.
REPRESENTATIONS BY GUARANTOR: The Guarantor represents that: (a) it is duly
organized, validly existing and in good standing (to the extent such concept
applies to the Guarantor) under the laws where it is organized, and has all
requisite authority to conduct its business in each jurisdiction in which its
business is conducted; (b) the execution and delivery of this Guaranty and the
performance of the obligations it imposes (i) are within its powers; (ii) have
been duly authorized by all necessary action of its governing body; and (iii) do
not violate any law, conflict with the terms of its articles of incorporation or
organization, its by-laws or any agreement by which it is bound or require the
consent of approval of any governmental authority or any third party; (c) this
Guaranty is a valid and binding agreement, enforceable according to its terms,
except as such enforceability may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditor's rights generally; and (d)
all balance sheets, income statements, and other financial statements furnished
to the Lender are accurate and fairly reflect the financial condition of the
organizations and persons to which they apply on their effective dates,
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including contingent liabilities of every type, which financial condition has
not changed materially and adversely since those dates.
INCORPORATION: The Guarantor agrees that so long as all or any portion of the
Guaranteed Debt remains outstanding, it will observe, for the benefit of the
Lender, the covenants and events of default set forth in the Credit Agreement
dated December 18, 2000 and subsequent Amendment Lettered dated May 17, 2001 and
December 13, 2001 between BANK ONE AUSTRALIA and the Guarantor, as amended (the
"Credit Agreement"), which provisions and related definitions are incorporated
by reference, mutatis mutandis. Those provisions and definitions remain in
effect until this Guaranty is no longer in force, notwithstanding any amendment,
modification, or termination of the Credit Agreement. An event of default under
and as define in the Credit Agreement constitutes an event of default under this
Guaranty, which entitles the Lender to accelerate the Guarantor's obligations
under this Guaranty and to exercise any and all of the remedies set forth in
this Guaranty.
LENDING INSTALLATIONS; SETOFF: The Guaranteed Debt may be booked at any office,
branch, subsidiary or affiliate of the Lender, as selected by the Lender (each a
"Lending Installation"). All terms of this Guaranty apply to and may be enforced
by or on behalf of any Lending Installation. Without limiting the rights of the
Lender under applicable law, if either (i) the Guaranteed Debt is then due,
whether pursuant to any agreement evidencing the Guaranteed Debt, an event of
default under this Guaranty, or otherwise, or (ii) the Guarantor is insolvent
(whether or not all or any part of the Guaranteed Debt is then due), then the
Guarantor authorizes the Lender to apply any sums standing to the credit of the
Guarantor with the Lender or any of its Lending Installations toward the payment
of the Guaranteed Debt by the Guarantor under this Guaranty.
NOTICES: All notices, requests and other communications to any party under this
Guaranty must be in writing (including bank wire, facsimile transmission or
similar writing) and must be given to that party, in the case of the Guarantor,
at its address or facsimile number set forth on the signature page hereof and,
in the case of the Lender, at its Head Office or as otherwise specified in a
notice by one party to the other. Each notice, request or other communication is
effective (i) if given by facsimile transmission, when transmitted to the
facsimile number specified below and confirmation of receipt is received, (ii)
if given by mail, 72 hours after the communication is deposited in the mails
with first class postage prepaid, addressed as specified above, or (iii) if
given by any other means, when delivered at the address specified above.
MISCELLANEOUS: No provision of this Guaranty may be amended, supplemented or
modified, or any of its terms and provisions waived, except by a written
instrument executed by the Lender and the Guarantor. No failure on the part of
the Lender to exercise, and no delay in exercising, any right under this
Guaranty waives that right; not does any single or partial exercise of any right
under this Guaranty preclude any other or further exercise of that or any other
right. The remedies provided in this Guaranty are cumulative and not exclusive
of any remedies provided by law. This Guaranty binds the Guarantor and its
successors and assigns, and benefits the Lender and its successors and assigns.
The use of headings does not limit the provisions of this Guaranty.
GOVERNING LAW: THIS GUARANTY IS TO BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS, BUT GIVING EFFECT
TO FEDERAL LAWS APPLICABLE TO THE LENDER.
CONSENT TO JURISDICTION: THE GUARANTOR IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE COURT SITTING IN
CHICAGO IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY
AND THE GUARANTOR IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION
OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY
WAIVES ANY OBJECTION IT MAY NOW OR LATER HAVE AS TO THE VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH A COURT IS AN
INCONVENIENT FORUM. THIS PROVISION DOES NOT LIMIT THE RIGHT OF THE LENDER TO
BRING PROCEEDINGS AGAINST THE GUARANTOR IN THE COURTS OF ANY OTHER JURISDICTION.
ANY JUDICIAL PROCEEDING BY THE GUARANTOR AGAINST THE LENDER INVOLVING, DIRECTLY
OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED
WITH THIS GUARANTY SHALL BE BROUGHT ONLY IN A COURT IN CHICAGO, ILLINOIS.
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WAIVER OF JURY TRIAL: THE GUARANTOR AND THE LENDER EACH WAIVE TRIAL BY JURY IN
ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER
SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO,
OR CONNECTED WITH THIS GUARANTY OR THE RELATIONSHIP IT ESTABLISHES.
Dated: , 2001 GUARANTOR:
-------------------- DAISYTEK, INC
Address for Notices:.
By: /s/ XXXXX XXXXXXXX
-----------------------------------
Facsimile No.: Title: EVP & CFO
------------------------ --------------------------------
GUARANTOR:
DAISYTEK INTERNATIONAL CORPORATION
Address for Notices:
By: /s/ XXXXX XXXXXXXX
-----------------------------------
Facsimile No.: Title: EVP & CFO
------------------------ --------------------------------
5
BANK ONE tel 000 000 0000
INTERNATIONAL CORPORATION fax 000-000-0000
Mail Code TX1-2478 xxx.xxxxxxx.xxx
XX Xxx 000000
Xxxxxx, XX 00000-0000
AGREEMENT made the 18th day of December 2000,
BETWEEN: BANK ONE, NA (ARBN 064 474 102) of Xxxxx 00, 00 Xxxxxxxx Xxxxxx, Xxxxxx
XXX (the "Bank")
AND: DAISYTEK AUSTRALIA PTY LTD (ACN 075 675 795) (the "Borrower")
WHEREBY IT IS AGREED as follows:
A. The Borrower has requested that the Bank provide or continue to provide
certain financial accommodation to the Borrower.
B. The Bank desires to provide or to continue to provide such financial
accommodation to the Borrower upon and subject to the terms and
conditions of this Agreement.
C. The obligations of the Borrower under this Agreement ("Guaranteed
Amount") are unconditionally guaranteed by the DAISYTEK, INC. and
DAISYTEK INTERNATIONAL CORPORATION (the "Guarantor").
1. INTERPRETATION
1.1 Definitions
In this Agreement unless the context otherwise requires:
"ACCOMMODATION LIMIT" means $15,000,000 or such other amount
(Australian Fifteen Million Dollars) which both parties may
agree upon in writing from time to time.
"ADVANCE" means any cash advance drawn under this Facility.
"THIS AGREEMENT" means this Agreement and any other agreement
expressed to be supplemental to this Agreement to which the
parties to this Agreement are parties and any amendments to
any such document.
"APPROVED PURPOSES" means the working capital needs,
acquisitions and other general corporate purposes of the
Borrower.
"AUTHORIZED OFFICER" means:
(a) in relation to the Borrower, all persons designated
by the Borrower as an Authorized Officer from time to
time, and notified in writing by the Borrower to the
Bank; and
(b) in relation to the Bank, persons designated by the
Bank as Authorized Officers.
"BANK" means it successors and permitted assigns.
"BBSY" means in respect of any day and in respect of any
Interest Period the rate per centum per annum quoted on the
page numbered 'BBSY' of the Reuters Monitor System under the
heading 'Average Bid Rate' for such Interest Period at or
about 10.00 am (Sydney time) on such day or on the first day
if such Interest Period (rounded up if necessary, to the
nearest four decimal places) PROVIDED THAT if in respect of
any Interest Period BBSY cannot be determined in accordance
with the foregoing procedures then BBSY for that Interest
Period shall mean such rate as is agreed between the Bank and
the Borrower
1
having regard to comparable indices then available and in the
absence of any such agreement shall be the rate stipulated by
the Bank having regard to such comparable indices.
"XXXX" has the same meaning as in the Bills of Exchange Act
1909 (but does not include a cheque).
"THE BORROWER" includes its successors and permitted assigns.
"BUSINESS DAY" means a day on which Australian trading banks
are open for a full range of banking business in the
metropolitan area of Adelaide, South Australia, Melbourne,
Victoria and Sydney,
New South Wales.
"DRAWDOWN" means an Advance made by the Bank to the Borrower
pursuant to this Agreement.
"DRAWDOWN DATE" means a date upon which an Advance is made by
the Bank to the Borrower pursuant to this Agreement.
"DRAWDOWN NOTICE" means a notice of intention of the Borrower
to borrow or redraw hereunder in the form or the effect of the
form in Schedule I, signed by an Authorized Officer of the
Borrower and received no later than 2.00 pm (Eastern Standard
Time) one (1) Business Day before the proposed date of such
borrowing, redrawing by the Bank.
"EVENT OF DEFAULT" means any of the events designated as such
in this Agreement.
"FACILITY" means the commitment to provide Advances under this
Agreement.
"FINANCIAL YEAR" means the period from 1 July to the next
following 30 June or such other period of one (1) year as the
parties may agree in writing from time to time.
"FIXED RATE LOAN" means a Cash Advance made under the Facility
for a term of more than 180 days with an interest rate fixed
for the whole of the term of such advance.
"GUARANTEED AMOUNT" means the aggregate of the Accommodation
Limit and the Overdraft Limit specified in Schedule VII and
any other agreed amount.
"GUARANTOR" means its successors and permitted assigns.
"INTEREST PERIOD" means each period of each Advance being a
period of not less than 1 day nor more than 180 days or such
other period as the Bank and the Borrower may agree provided
that such period shall not extend beyond the Repayment Date.
"LOANS" means the aggregate of all Principal Moneys which are
from time to time owing (including contingently owing) or
unpaid to the Bank and all other monies from time to time
owing (including contingently owing) and unpaid to the Bank
under this Agreement.
"PRINCIPAL MONEYS" means the aggregate of the Advances
outstanding.
"QUARTER" means each quarter period ending on the last days of
March, June, September and December in each year.
"REFERENCE BANKS" means such banks as may from time to time be
determined by the Bank to be "Reference Banks."
"REPAYMENT DATE" means with respect to Advances the
Termination Date.
"SECURITY INTEREST" means any security or preferential
interest or arrangement of any kind in any asset or other
right of or arrangement of any kind with any creditor to have
its claim satisfied before other creditors with or from the
proceeds of any asset, any deposit of money by way of security
and any retention of title other than in the ordinary course
of day to day trading conducted at arms length not including a
charge or
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lien arising in favor of a governmental agency by operation or
statute unless there is a default in payment of money secured
by that charge or lien.
"SUBSIDIARY" means:
(a) a subsidiary as defined in the Corporations Law; or
(b) In respect of a person any entity of which that
person owns or controls, or is in a position to own
or control whether directly or indirectly, more than
fifty percent (50%) of the capital or voting rights;
and includes any subsidiary formed or acquired after
the date of this Agreement.
"TERMINATION DATE" means January 1, 2002.
1.2 Construction
In this Agreement unless the context otherwise requires:
(a) A reference to any Act of Parliament or to any
section or provision thereof shall be read as if the
words "or any statutory modification or re-enactment
thereof or any statutory provision substituted
therefore" were added to such reference.
(b) A reference to winding up shall when applied to
individuals be deemed to refer to bankruptcy.
(c) A reference to an accounting term or "Australian
Accounting Standards" is to be interpreted in
accordance with approved accounting standards and
practices under the Corporations Law, and, where not
inconsistent with those accounting standards and
practices generally accepted principles and practices
in Australia consistently applied to a body corporate
or as between bodies corporate and over time. A
reference to "consolidated" in relation to accounts
or other financial information, data or statistics
with respect to a person means treated for accounting
purposes as if accounting standards and generally
accepted accounting principles for the creation of
consolidated accounts applicable to a holding company
and its subsidiaries applied to the person.
(d) References to sub-clauses, clauses and schedules are
references to sub-clauses, clauses and schedules of
this Agreement.
(e) References to any agreement, license or other
instrument shall be deemed to include references to
such agreement, license or other instrument as varied
or replaced from time to time.
(f) Words importing any gender shall include all other
genders; words importing individuals shall include
partnerships and corporations and vice versa; words
importing the singular number shall include the
plural and vice versa; the index (if any) any
headings are for convenience and shall not affect the
interpretation of this Agreement.
(g) Where under or pursuant to this Agreement or anything
done under this Agreement the day on or by which any
act, matter or thing is to be done is not a Business
Day such act, matter or thing may be done on the next
succeeding day which is a Business Day (except with
respect to the payment of monies payable under this
Agreement which shall be made on the immediately
preceding day which is a Business Day).
2. THE FACILITY
2.1 The Bank agrees to furnish to the Borrower upon and subject to
the terms and conditions of this Agreement Advances up to the
Accommodation Limit in aggregate.
2.2 The Facility may be made available in Australian currency.
3
2.3 The Borrower may request that any part of the Facility be made
available either in Australian currency or in a currency other
than Australian currency.
In the event that the Borrower shall request that any part of
the Facility be made available in a currency other than
Australian currency then the Bank shall not be required to so
make that part of the Facility available in a currency other
than Australian currency if:
2.3.1 the aggregate amount borrowed in Australian currency
and the then Australian dollar countervalue of any
currency other than Australian currency (calculated
as provided in Clause 2.7) borrowed or to be borrowed
shall be greater than the Accommodation Limited; or
2.3.2 the Bank is not satisfied with any designated period
of borrowing or risk exposure; or
2.3.3 for any reason whatsoever it is impractical for the
Bank to make available any accommodation under the
Facility in a currency other than Australian
currency.
2.4 Where any accommodation under the Facility is denominated in a
currency other than Australian currency, repayment or payment
in respect of such accommodation and payments of Interest
thereon and fees in respect thereof shall be made by the
Borrower in the currency of such accommodation.
2.5 The Borrower agrees that currency fluctuations are to the
account of the Borrower and that the Borrower bears the risk
for the same.
2.6 All sums falling due hereunder by way of interest or fees on a
per annum percentage basis shall be calculated on the basis of
a 365 day year for Advances or fees payable in Australian
currency and a 360 day year for all other currencies for the
actual number of days elapsed.
2.7 The Australian dollar countervalue of any amount of any
currency other than Australian currency to be determined for
any purpose shall, as between the Bank and the Borrower, be
calculated at the Bank's spot selling rate of exchange in
respect of the same on the day any such calculation is
required to be made at the particular time of the day
determined by the Bank. A certificate signed by the Bank
stating any such rate of exchange shall be conclusive evidence
of such rate of exchange.
2.8 Subject to any specific provision to the contrary and to
Clause 2.9, where the Borrower comprises two or more persons
they are bound jointly, each of them severally and any two or
more of them jointly and severally.
2.9 The only party liable as a principal debtor under this
Agreement in relation to any Advances is the party that draws
the Advance.
3. ACCOMMODATION LIMIT
3.1 At any one time the aggregate amount of Advances outstanding
shall not exceed the Accommodation Limit.
3.2 The Bank shall not be obliged to make any Advance to the
Borrower if to so do would result in a breach of Clause 3.1.
3.3 The Bank may act upon the oral instruction of any of the
following persons in the position of: Chief Financial Officer,
Treasurer, Controller, Director of Cash Management of the
Guarantor or Financial Controller of the Borrower.
4. PURPOSE OF THE FACILITY
Utilisation of this Facility by the Borrower under this Agreement shall
be used solely for the Approved Purposes and no other purpose except
with the prior written approval of the Bank to do otherwise. The Bank
shall not have any responsibility to ensure that it is so utilised.
4
5. ADVANCES
5.1 Each Advance shall be repayable at the stated maturity date
established by the Bank (from an overnight basis to a period
not to exceed 180 days nor the Repayment Date) at or about the
time of Advance or, if no such stated maturity is established,
upon demand. All Advances must be repaid by the Repayment
Date.
5.2 Interest for each Advance shall be calculated to be a margin
as determined by the Pricing Grid in Appendix A plus BBSY as
agreed to between the Bank and the Borrower.
5.3 Interest shall be calculated daily and be paid monthly in
arrears, save that the last interest payment shall be made on
the Repayment Date.
5.4 The Borrower may repay an Advance in whole (but not in part)
before the maturity date if, but only if:
5.4.1 The Borrower gives the Bank at least 5 business days
irrevocable notice in writing of the Borrower's
intention to repay;
5.4.2 The Borrower makes payment to the Bank of all monies
payable pursuant to subparagraph 5.5;
5.4.3 The Borrower makes payment on the day of payment
specified in the notice.
5.5 In the event that the Borrower wishes to make early repayment
of an Advance or if for any reason early repayment of an
Advance is demanded by the Bank as a result of an Event of
Default, the Borrower shall pay to the Bank in addition to all
other monies then payable an amount sufficient to compensate
and to indemnify the Bank for and against all losses
(including loss of profits), costs, damages and expenses which
the Bank determines that the Bank will or is likely to suffer
or incur as a result of such early repayment. The Borrower
acknowledges that the Bank may endeavor to arrange or enter
into an interest rate swap agreement or other commitment and
may as a consequence of this (whether directly or indirectly)
suffer or incur losses, costs, damages or expenses in the
event that all or part of the relevant advance is repaid prior
to the due date of payment.
5.6 All notices of drawdown (whether verbal or written) shall be
irrevocable. The obligations of the Borrower shall be absolute
and unconditional and shall not be subject to any reduction,
termination, or other impairment by any set-off, deduction,
counterclaim, agreement, defense, suspension, deferment, or
otherwise, and the Borrower shall not be released from any
obligations under the Facility, nor shall such obligations be
prejudiced or affected for any reason including without
limitation:
5.6.1 by any falsity, inaccuracy, insufficiency or forgery
which on its face purports to be signed or authorized
pursuant to a Notice of Drawdown;
5.6.2 by any failure by the Bank to inquire whether any
cable, fax or telex has been inaccurately transmitted
or received, or has been sent by an unauthorized
person.
5.7 Any Advance may, at the discretion of the Bank, be made by a
nominated subsidiary of the Bank. In such event the Bank shall
be agent of the nominated subsidiary in all matters dealing
with payment and recovery.
5.8 Whenever the Borrower intends to borrow or redraw any of
Advance amount under the Facility, it shall give the Bank a
Drawdown Notice of such intent no later than 2:00 p.m.
(Eastern Standard Time) one (1) business day before the
proposed date of such borrowing or redrawing. A Drawdown
Notice for an Advance shall be in the form or the effect of
the form in Schedule 1. The Bank's acceptance of such Drawdown
notice is subject to Clause 3.
5
6. LETTERS OF CREDIT - SECTION DELIBERATELY LEFT BLANK
7. SBLC - SECTION DELIBERATELY LEFT BLANK
8. INTEREST
The Borrower shall pay to the Bank interest on all further monies
(other than interest) due and unpaid by the Borrower to the Bank under
or pursuant to this Agreement at the rate of five (5%) percent above
the rate of the Bank's Overdraft Reference Rate which applies as at the
date such monies become due and payable. All interest which accrues
under this sub-clause during any calendar month shall become due and
payable by the Borrower to the Bank on the last Business Day of that
calendar month and if not then paid shall be compounded and bear
interest accordingly.
9. FEES
9.1 Establishment Fee: N/A.
9.2 Line Fee: The Borrower shall pay to the Bank a line fee as
determined by the Pricing Grid in Appendix A, per annum
calculated in respect of each Quarter on the Accommodation
Limit and be payable Quarterly in arrears. The Line Fee shall
accrue from the date of signing this Agreement.
9.3 Expenses: Whether or not the Borrower shall draw down under
this Agreement the Borrower shall forthwith reimburse the Bank
for the charges and expenses incurred by the Bank.
9.3.1 in contemplation of or in carrying out its duties
under this Agreement;
9.3.2 in connection with the negotiation, preparation or
execution of this Agreement or the administration of
this Agreement; and
9.3.3 in connection with the enforcement of, or the
exercise or purported or attempted exercise of any
right, authority or remedy conferred on the Bank
under or by virtue of this Agreement;
including in each case the fees and expenses of legal advisors
on a solicitor and own client basis and all stamp duty
(including financial institutions duty and duty passed on to
the Bank by any bank or financial institution) levied on or in
connection with this Agreement or any payment or the receipt
of any payment under this Agreement.
9.4 The Borrower shall forthwith pay any and all stamp duty
(including any financial institutions or other receipts duty),
registration and similar taxes or charges imposed by
governmental authorities which may have been paid or may be
payable or determined to be payable in connection with:
9.4.1 the execution, delivery, performance or enforcement
of this Agreement;
9.4.2 on or in respect of any transaction contemplated by
this Agreement;
9.4.3 any other matter or thing done or arising out of or
in connection with this Agreement; or
9.4.4 any transaction related to this Agreement;
and shall indemnify the Bank against any and all liabilities
with respect to or resulting from delay or omission to pay
such taxes or charges including any fines or penalties (save
those due to delay or negligence on the part of the Bank).
9.5 Increase in Costs by Government Action
If any law, regulation or regulatory requirement or judgment,
order or direction of any court, tribunal or authority binding
on the Bank in any jurisdiction taking effect after the date
of this Agreement, or if
6
compliance by the Bank with any direction, request or
requirement (whether or not having the force of law) or any
competent governmental or other authority, shall:
9.5.1 subject the Bank to taxes or change the basis of
taxation of the Bank with respect to any payment
under this Agreement; or
9.5.2 impose, modify or deem applicable any reserve or
prudential or capital adequacy requirement or require
the making or the varying of terms of any special
deposits against or in respect of any assets or
liabilities (whether contingent or otherwise) of,
deposits with or for the account of, or loans by, the
Bank; or
9.5.3 impose on the Bank any other conditions with respect
to this Agreement or its obligations under this
Agreement;
and if, as a result of any of the foregoing:
9.5.4 the cost to the Bank of making or keeping the
Facility available or otherwise performing its
obligations under this Agreement or allocating its
capital resources is increased; or
9.5.5 the amount payable or the effective rate of return on
its overall capital to the Bank under this Agreement
is reduced; or
9.5.6 The Bank makes a payment or foregoes or suffers a
reduction in a return on or calculated by reference
to any amount payable to it under this Agreement;
then, and in each such case, the Bank shall notify the
Borrower and give the Borrower the option exercisable by
notice in writing to the Bank within ten (10) Business Days of
receipt of notice of the Bank of:
9.5.7 paying an amount or amounts to the Bank from time to
time on demand to compensate the Bank in full for any
cost or reduction of the kind referred to effective
from the date on which the cost or reduction is
actually incurred by the Bank; or
9.5.8 terminating this Agreement on the first to occur of
the end of the then current Interest Period and the
Repayment Date by paying to the Bank the debt owing
to it on that date with accrued interest and all
other monies payable under this Agreement, together
with an amount determined by the Bank to compensate
it up to that date for actual cost or reduction of
the type referred to.
If the Borrower fails to make an election the Borrower shall
be deemed to have made the election in sub-clause 5.7 of this
Clause. The Bank's certificate in respect of any cost or
reduction of the kind referred to shall be prima facie
evidence of the incurring of any such cost or reduction,
except in the case of manifest error.
9.6 Gross Up
9.6.1 If at any time any applicable law, regulation or
regulatory requirement of any government authority,
monetary agency of central bank requires the Borrower
to make any deduction or withholding in respect of
taxes from any payment due under this Agreement:
(a) the sum due from the Borrower in respect of
the payment shall be increased to the extent
necessary to ensure that, after the making
of the deduction or withholding, the Bank
receives a net sum equal to the sum which it
would have received had no such deduction or
withholding been required to be made; and
(b) the Borrower shall indemnify the Bank
against any losses or costs incurred by the
Bank by reason of any failure of the
Borrower to make any such deduction or
withholding.
7
The Borrower shall promptly deliver to the Bank any
receipts, certificates or other proof evidencing the
amounts (if any) paid or payable in respect of any
such deduction nor withholding, together with any
other information which the Bank may reasonably
require.
9.6.2 If the Bank or any person on its behalf is required
by any applicable law, regulation or regulatory
requirement of any government authority, monetary
agency or central bank to make any deduction or
withholding from, or any payment on or calculated by
reference to, any amount received or receivable under
this Agreement (other than taxes payable on the
overall net income of the Bank) then (without
prejudice to sub-clause 6.1) the Borrower shall upon
demand indemnify and hold harmless the Bank against
any such deduction, withholding or payment together
with any related cost, loss, expense, interest,
penalties or other liability by payment to each such
person of such amounts and in such currencies as the
person concerned may certify are required to
compensate it for any such deduction, withholding or
payment together with any related cost, loss,
expense, interest, penalties or other liability.
9.7 GST Gross Up
In this clause 9.7, GST means a goods and services or similar
tax imposed in Australia, together with any related interest,
penalties, fines or other charges.
9.7.1 Notwithstanding any other provision of this
Agreement:
(a) in the event that GST has application to any
supply made under or in connection with this
agreement by a party, that party may, in
addition to any amount or consideration
payable under this Agreement, recover from
the Borrower an additional amount on account
of GST, such amount to be calculated by
multiplying the relevant amount or
consideration payable by the Borrower for
the relevant supply by the prevailing GST
rate; and/or
(b) without limiting the generality of the
foregoing, in the event that a party (other
than the Borrower) is not entitled to an
input tax credit in respect of the amount of
any GST charged to or recovered from that
party by any person, or payable by that
party, or in respect of any amount which is
recovered from that party by way of
reimbursement of GST reforable directly or
indirectly to any supply made under or in
connection with this Agreement, that party
shall be entitled to increase any amount or
consideration payable by the Borrower on
account of such input tax and recover from
the Borrower the amount of any such
increase.
9.7.2 Any additional amount on account of GST, or on
account of an amount for which a party is not
entitled to an input tax credit, recoverable from the
Borrower pursuant to sub-paragraph 9.7.1(a) or (b) of
this clause shall be calculated without any deduction
or set-off of any other amount and is payable by the
Borrower upon demand by the party whether such demand
is by means of an invoice or otherwise.
9.7.3 Each party will use its best endeavors to determine
reasonably the extent (if any) to which any amount
payable by the Borrower to that party for any supply
made under this Agreement may be reduced as a direct
consequence of the abolition of or reduction in any
taxes, duties, or statutory charges paid or payable
by that party (as part of the imposition of GST)
which directly relate to the supply by that party,
and the amount payable by the Borrower to that party
shall be reduced only to the extent of the reduction
(if any) so determined by the Bank.
9.7.4 Without limiting sub-paragraph 9.7.1(a), if requested
by the Borrower in writing the relevant party will
provide an invoice in relation to any supply to which
sub-paragraph 9.7.1(a) has been applied no later than
28 days after the request is made.
10. TERMINATION OF FACILITY
Subject to any agreement in writing to the contrary entered into the
Bank and the Borrower the Facility shall terminate on the Termination
Date and the Borrower shall pay to the Bank the Advances forthwith.
8
11. CONDITIONS PRECEDENT
11.1 To the Facility
The granting of this Facility is subject to the Bank receiving
prior to any requests of the Borrower, all of the following in
the form and substance satisfactory to the Bank;
11.1.1 There exists no Event of Default
11.1.2 A copy of the Board resolution of the Borrower
authorizing the Borrower to enter into this Agreement
and appointing authorized persons to sign all
applications notices and documents to be delivered
hereunder and for the operation of the Facility; and
specimen signatures of the authorized persons
appointed under the Board resolution referred to
herein.
11.1.3 A copy of this Agreement duly executed by the
Borrower.
11.1.4 A Guarantee duly executed by the Guarantors in a form
and substance acceptable to the Bank.
11.1.5 A copy of the Board resolution of the Guarantor
authorizing the issuance of the guarantee referred to
in sub-clause 11.1.5, and appointing authorized
persons to sign all applications notices and
documents to be delivered hereunder; and specimen
signatures of the authorized persons appointed under
the Board resolution referred to herein.
11.2 To a Drawdown
The obligation of the Bank to make any Advance is subject to
the fulfillment (to the reasonable satisfaction of the Bank)
of the following conditions precedent:
11.2.1 The Bank has duly received from the Borrower a
request for a Drawdown in the form of a Drawdown
notice.
11.2.2 All representations given to the Bank herein are true
and correct as at the date of such Advance.
11.2.3 No Event of Default exists.
11.2.4 The Bank is satisfied that there has been no material
or adverse change in the financial condition of the
Borrower.
11.2.5 This Agreement is valid and binding on the Borrower
and is enforceable in accordance with its terms.
11.2.6 The Bank has received the items outlined in
sub-clause 11.1 and such other things as it may
reasonably require before drawdown.
12. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Bank as follows:
12.1 The Borrower is a limited liability corporation duly
incorporated and validly existing under the laws of Australia
and has the corporate power to own property and assets and to
carry on business as it is now being conducted.
12.2 This Agreement constitutes a legal valid and immediately
binding obligation on the Borrower and is enforceable in
accordance with its express terms.
12.3 Third Party Rights. The execution, delivery and performance of
this Agreement by the Borrower shall not violate in any
respect any provision of:
9
12.3.1 any law or regulation or any order or decree or any
government authority, agency or court of the
Commonwealth of Australia or of a State or Territory
thereof;
12.3.2 the Memorandum or Articles of Association of the
Borrower; nor
12.3.3 any mortgage, contract or other undertaking or
instruments to which the Borrower is party or which
is binding upon the Borrower or any of its assets.
12.4 All authorizations, approvals, consents, licenses, filings,
registrations, notarizations and other requirements or any
governmental judicial or public body, authority, bureau or
agency in the Commonwealth of Australia or in a State or
Territory thereof now obtainable and required in connection
with the execution, delivery, performance, validity or
enforceability of this Agreement have been obtained or
effected and are in full force and effect and true copies
thereof (where applicable) have been delivered to the Bank and
all fees payable in connection therewith have been paid and
there has been no default in the performance of any of the
terms or conditions of any of the same.
12.5 The Borrower is not in default under any agreement undertaking
or instrument to which it is a party or by which it is bound,
such default being material in the context of this Agreement
and no event has occurred which with the giving of notice of
lapse of time or both would constitute such a default.
12.6 No litigation or governmental proceeding is pending or, to the
knowledge of the Borrower, threatened against the Borrower or
any of its Subsidiaries which could have a material adverse
effect on the condition, financial or otherwise, of the
Borrower and its Subsidiaries on a consolidated basis.
12.7 The Borrower and each of its Subsidiaries have duly filed all
taxation returns required to be filed (none of which are so
far as the Borrower is aware likely to be the subject of any
dispute) and have paid all taxation levied or assessed upon it
has complied with all assessments and notices in respect
thereof or have established adequate reserves for payment
thereof.
12.8 The obligations of the Borrower under this Agreement rank at
least equally with all other unsecured and unsubordinated
indebtedness of the Borrower except any liabilities mandatory
preferred by law.
12.9 In entering into this Agreement the Borrower is not acting as
a trustee of any trust or settlement.
12.10 The Borrower holds all necessary licenses, permits, consents,
approvals or authorities for its business and property and use
of premises and such are valid in full force and effect in all
respects and are in good standing and all fees due in respect
thereof have been paid and all conditions relating thereto
have been duly complied with and no notice of breach or
termination thereof has been given or has been or is
threatened and no circumstances have arisen or are in
existence to the knowledge of the Borrower which would with
the giving of notice or lapse of time or both entitle any
competent authority to call into question, suspend, cancel or
terminate the same nor are there any circumstances to indicate
that equivalent licenses, permits, consents, approvals or
authorizations would not be granted to the Borrower upon
renewal on no less favorable terms than exist now.
12.11 All risks usually insured against according to sound
commercial practice by persons carrying on activities similar
to the Borrower's are fully insured against in amounts
representing the present full replacement or reinstallation
values or market values and in the name of and for the benefit
of the Borrower absolutely.
12.12 The Borrower is not aware of any fact or circumstance which
might reasonably be expected to affect in any material adverse
way the financial position, operations, aspects,
profitability, or prospects of the Borrower or the business of
the Borrower or the value of the property of the Borrower
other than those expressly disclosed in writing to the Bank or
affecting as a whole the industry in which the Borrower
participates.
12.13 All information provided by or on behalf of the Borrower
whether prior to or after the date of this Agreement to the
Bank is true and correct and is not, by the omission of
information or otherwise, misleading and all projections
contained therein were arrived at after the due and careful
consideration and were based on the best information available
and on fair assumptions.
10
The representations and warranties in this clause shall be deemed to be
repeated by the Borrower on and as of the date of each Advance or issue
of Letter of Credit or Guarantee (as the case may be) as if made with
reference to the facts and circumstances existing at such date.
The Borrower acknowledges that the Bank relies on the representations
and warranties made or given in this Agreement by the Borrower and that
the Bank is induced by each such representation and warranty to enter
into this Agreement and the rights of the Bank in respect of a breach
of any representation or warranty shall not be affected by
investigation (if any) made by the Bank into the affairs of the
Borrower.
13. GENERAL OBLIGATIONS
The Borrower hereby so far as the following shall apply to the Borrower
agrees that on and from the date of this Agreement and so long as any
amount payable under this Agreement is outstanding:
13.1 The Borrower shall take all action necessary to obtain and
promptly review from time to time all authorizations,
approvals, consents, licenses and exemptions as may be
required under any applicable law or regulation to enable the
Borrower to perform its obligations under this Agreement or
required for the validity or enforceability of this Agreement
or any transaction contemplated by this Agreement.
13.2 The Borrower shall prepare and maintain in accordance with
Australian Accounting Standards proper and adequate books and
records reflecting fully all transactions entered into by the
Borrower and all its Subsidiaries.
13.3 The Borrower shall promptly notify the Bank in writing of the
occurrence or pending or threatened occurrence of any event
which may cause or constitute a breach of any of the
representations or warranties or agreements of the Borrower in
this Agreement including any event which may result in a
material change in the business of the Borrower and any other
event which constitutes or which may with the giving of notice
or lapse of time or both or other conditions constitute an
Event of Default.
13.4 The Borrower shall comply with all requirements of the
Corporations Law or of the corresponding legislation of any
other place applicable to the Borrower.
13.5 The Borrower shall permit representatives of the Bank (or any
accountants or other experts designated by it) during normal
business hours and upon reasonable notice to visit and inspect
and examine the books of account records (excluding company
minute books), reports and other papers (and to make copies
and to take extracts therefrom) of the Borrower and to discuss
its affairs, finances and accounts with its officers,
accountants and auditors, all at such times and as often as
may be reasonably requested by the Bank but only in so far as
such matters relate to information as may reasonably be
required by the Bank for any purpose connected with this
Agreement.
13.6 Neither the Borrower nor any of its Subsidiaries shall, except
as permitted in this Agreement, without the prior written
consent of the Bank create or assume or permit to exist or
arise any Security Interest whatsoever over any part of its
present or future undertakings, property, assets uncalled
capital or revenues. The Borrower and its Subsidiaries
represent and warrant to the Bank that there is no such
Security Interest over any part of their present or future
undertakings, property, assets, uncalled capital or revenues
in existence as at the date of this Agreement.
13.7 The Borrower shall permit the Bank upon written request of the
Bank to from time to time inspect the register of the members
of the Borrower at the Borrower's registered office or other
place or places where the register or any branch register is
so kept at any time during regular business hours and the
Borrower shall furnish the Bank with any information which the
Bank may consider reasonably necessary to enable it to
determine whether or not there has been at any time after the
date of this Agreement a transfer of the effective management
and control of the Borrower.
13.8 The Borrower shall furnish to the Bank copies of all such
accounts, documents, reports, notices, circulars, particulars
and certificates which are required to be furnished by the
Borrower to any stock exchange, corporate affairs office (or
analogue office) or shareholder at the same time as they are
furnished to that stock exchange, corporate affairs (or
analogous office) or shareholder and when requested by the
Bank copies of such documents, reports, notices, circulars,
particulars or certificates which are required under
11
the provision of any trust deed to which the Borrower is a
party to be furnished to the trustee thereunder from time to
time.
13.9 The Borrower shall comply in all material respects with all
applicable laws, rules, regulations and orders including,
without limitation, paying when due all taxation, assessments
and governmental charges imposed upon it or its assets and all
other claims which may become a lien upon any of its property
except to the extent contested in good faith and by
appropriate procedure unless the loss of such contested
proceedings would have a material adverse effect on the
ability of the Borrower to meet its obligations under this
Agreement.
13.10 The Borrower shall provide updated signatory lists and
specimen signatures from time to time of persons authorized to
sign documents and operate the Facility.
14. FINANCIAL INFORMATION
The Borrower shall supply the Bank with all financial or other
information as the Bank may reasonably request in writing always
including the following without request:
14.1 As soon as possible but in any event within 120 days of the
end of each Financial Year copies of the audited annual profit
and loss statement and balance sheet of the Guarantor and
unaudited annual profit and loss statement and balance sheet
of the Borrower along with corresponding accounting workpapers
prepared in accordance with Guarantor audit.
14.2 As soon as possible but in any event within 60 days of the end
of each quarterly period a copy of the management accounts and
of the unaudited balance sheet and profit and loss statement
of the Borrower and the Guarantor.
14.3 Quarterly certificate of compliance from the Guarantors that
they are not in breach of any obligations or covenants under
any of their debt.
All of the financial information referred to above shall be prepared in
accordance with applicable accounting standards.
15. FINANCIAL COVENANTS - SECTION DELIBERATELY LEFT BLANK
16. EVENTS OF DEFAULT
If any of the following events occur ("Events of Default") the Loans
shall at the option of the Bank and notwithstanding any delay or
previous waiver of the right to exercise such option become immediately
due and payable upon written demand by the Bank to the Borrower and the
obligations to the Bank under this Agreement shall be cancelled on the
occurrence of any of the following events:
16.1 If the Borrower fails to pay the Loans or any part thereof or
any interest thereon or any other monies payable to the Bank
at or before the due time on the due date in the manner
specified in this Agreement and such default continues for
more than three (3) days.
16.2 If the Borrower fails to observe or perform any obligations to
be observed or performed by it under this Agreement or in
connection with any transaction contemplated by this Agreement
and if such default shall in the opinion of the Bank be
capable of prompt remedy, the Borrower shall not have remedied
such default within five (5) days after notification by the
Bank to the Borrower requiring remedy of such default.
16.3 Any representation or statement made or deemed to be made by
the Borrower in this Agreement or in writing pursuant to this
Agreement shall not be complied with or shall prove to be
untrue in any respect which materially adversely affects the
interests of the Bank on any date as of which it was made or
deemed made.
16.4 The Borrower fails to duly pay any debt constituting principal
and interest owed by it to any other persons other than the
Bank with respect to borrowed money or money otherwise owed
under any note, bond, or
12
similar instrument or fails to pay when the same becomes due
and payable in excess of A$35,000 and which breach or default
has not been waived and, with notice or the passage of time,
or both, allows the maturity of such debt to be accelerated.
16.5 If all or any part of this Agreement becomes void, illegal,
invalid, unenforceable, or of limited or reduced force or
effect.
16.6 Any other present or future indebtedness of the Borrower, or
any Subsidiary of the Borrower for borrowed money shall become
due and payable prior to the stated maturity thereof as a
result of a default or any such indebtedness shall not be paid
on the due date thereof or upon the expiration of any
applicable grace period therefor, or the Borrower, or any
Subsidiary of the Borrower shall fail to pay when due or upon
the expiration of any applicable grace period therefor any
amount payable by it under any present or future guarantee for
borrowed money or for the purchase of fixed assets on deferred
terms or any encumbrance over any assets of the Borrower, or
any Subsidiary of the Borrower shall be or become enforceable.
16.7 A distress or other execution is levied or enforced upon or
against any part of the property of the Borrower for an amount
exceeding A$500,000.00 and is not withdrawn or satisfied
within fourteen (14) days of having been so levied or enforced
and the Bank considers that such event is prejudicial to the
interests of the Bank under this Agreement.
16.8 If the Borrower fails (as defined in Section 459F of the
Corporations Law) to comply with a statutory demand (as
defined in Section 9 of the Corporations Law) or is presumed
to be insolvent pursuant to Section 459C(2)(a) of the
Corporations Law or admits such fact in writing.
16.9 If the Borrower is wound up or if a petition is presented or
an order is made for the winding up of the Borrower and is not
withdrawn within fourteen (14) days or if a resolution is
passed for the winding up of the Borrower otherwise than for
the purpose of reconstruction of amalgamation the terms of
which have previously been approved in writing by the Bank
such approval not to be unreasonably withheld.
16.10 If a receiver or receiver and manager is appointed in respect
of any part of the assets of the Borrower or an encumbrancer
takes possession of the undertaking or the property of the
Borrower or any part thereof.
16.11 If the Borrower makes default under any charge or security in
favor or any person other than the Bank.
16.12 If an inspector of all or any part of the affairs of the
Borrower is appointed pursuant to the Corporations Law (or the
corresponding legislation of any place applicable to the
Borrower).
16.13 If the Borrower suspends payment of its debts, which
expression shall have the meaning that it has for the purposes
of Section 40 of the Bankruptcy Xxx 0000 of Australia.
16.14 If a compromise or arrangement is proposed between the
Borrower and its creditors or any class of them or if an
application is made to a court for an order summoning of
creditors or any class of them of the Borrower.
16.15 If without the prior written consent of the Bank the Borrower
reduces or attempts to reduce its capital or buy back any of
its shares.
16.16 If the Borrower stops payment generally.
16.17 If the Borrower is placed under voluntary administration
pursuant to Part 5.3A of the Corporations Law or causes or
propose to cause a meeting of its creditors to be summoned for
the purposes of placing it under administration pursuant to
Part 5.3A of the Corporations Law.
16.18 If any of the property of the Borrower or the ownership of
which is in the opinion of the Bank material to the ability of
the Borrower to perform its obligations under this Agreement
is seized or otherwise expropriated, nationalized, confiscated
or acquired through any governmental action or intervention or
if custody or control of such property shall be assumed by any
government or government agency.
13
16.19 If any governmental or semi-governmental authorization
approval license consent or agreement which the Bank deems
essential to the Borrower's performance of its obligations
under this Agreement is revoked, terminated, cancelled or
withheld.
16.20 If without the prior written consent of the Bank the
Memorandum or Articles of Association of the Borrower is
altered in a manner which in the reasonable opinion of the
Bank is material to the performance by the Borrower of its
obligations under this Agreement.
16.21 If a meeting of the Borrower is called for the purpose of
considering and if thought fit passing any resolution the
passing of which would constitute or give rise to an Event of
Default.
16.22 If in the opinion of the Bank there is a material change in
the ownership, control or management of the Borrower which is
likely to adversely affect the ability of the Borrower to
conduct its business in a proper manner and to carry out its
obligations under this Agreement.
16.23 If the Borrower defaults in the performance or observance of
any provision of any other indebtedness to or security of the
Bank and the Borrower whether the indebtedness or security is
collateral to this Agreement or whether it is a separate
Agreement between the Bank and the Borrower and such default
continues for more than seven (7) days after the due date.
16.24 If the Borrower shall do any act, deed, matter or thing or
knowingly or willingly permit or suffer any act, deed, matter
or thing to be done whereby directly or indirectly the
security of the Bank shall in the opinion of the Bank become
deteriorated or lessened in value.
16.25 If the Borrower shall at any time not have an auditor
appointed pursuant to the provision of the Corporations Law.
16.26 If the Borrower makes any material change to the business it
carries on without the prior written consent of the Bank or if
the Borrower ceases or threatens to cease to carry on its
business.
16.27 If the Borrower suffers any material adverse change in its
financial condition which may materially affect the interest
of the Bank unless such change is agreed to in writing by the
Bank.
16.28 The Guarantor shall cease, directly or indirectly, to own free
and clear of all liens or other encumbrances, 75% of the
issued share capital of the Borrower.
16.29 If any of the above events of default occur in respect of the
Guarantor.
16.30 If the Guarantor withdraws its Guarantee.
16.31 If either Guarantor defaults under any of its credit
agreements.
17. INDEMNITIES
The Borrower indemnifies the Bank from and against all actions, suits,
claims, demands, losses, liabilities, damages, costs and expenses which
may be made or brought against or suffered or incurred by the Bank
arising out of or in connection with:
17.1 any Event of Default or any event which with the giving of
notice, the passage of time or the fulfillment of any other
condition would become an Event of Default; or
17.2 any failure by the Borrower to take an Advance in accordance
with any request for a Drawdown.
18. CERTIFICATIONS
18.1 Any document or thing required to be certified by the Borrower
shall be certified by a director or secretary of the Borrower
or in such other manner as the Bank may approve.
14
18.2 A certificate signed by an Authorized Officer of the Bank
stating any amount or rate for the purpose of this Agreement
shall in the absence of manifest error be conclusive and
binding on the Borrower.
19. POWER OF ATTORNEY
If any Event of Default occurs, the Borrower hereby irrevocably
appoints the Bank and each Authorized Officer severally its attorney to
do all acts and things which may or ought to be done by the Borrower
under this Agreement and without limiting the generality of the
foregoing the attorney shall have power in the name of the Borrower to
sign, draw, endorse, accept or negotiate any draft, order, cheque,
promissory note or other instrument of a like nature or not as the
attorney shall think fit.
20. UNLAWFULNESS
If:
20.1 any law, regulation or regulatory requirement or judgment,
order in direction of any court, tribunal or authority binding
upon the Bank in the jurisdiction in which the Bank is formed
or has its principal or lending office(s) or in which action
is required to be performed by it for the purposes of this
Agreement; or
20.2 any change in the interpretation of any such law, regulation
or regulatory requirement or judgment, order or direction of
any court, tribunal or authority by any government or
governmental agency charged with the administration thereof or
by a court of competent jurisdiction or compliance by the Bank
with any respect or direction (whether or not having this
force of law) of the Reserve Bank of Australia or any
government or other governmental agency in accordance with
whose requests or directions the Bank is accustomed to act;
renders it unlawful for the Bank to meet any of its obligations under
the Facility, the Bank shall promptly notify the Borrower and the
following provisions shall apply:
20.3 the Borrower and the Bank shall negotiate for a period not
exceeding thirty (30) days with a view to the Bank making
arrangements to be able to meet the relevant obligations under
the Facility in whole or in part in a manner which is not
unlawful; and
20.4 if no such arrangements have been made by the end of such
period, thereupon the Bank shall be released from its
obligations under this Agreement, the Facility shall be
cancelled and the Borrower shall pay to the Bank the Loans
under this Agreement.
21. AUTHORITY TO DEBIT ACCOUNTS
The Borrower irrevocably authorizes and directs the Bank to debit any
account or accounts of the Borrower with the Bank in respect of any
amounts that are from time to time due and payable under this
Agreement.
22. NO WAIVER
No failure to exercise and no delay in exercising on the part of the
Bank any right, power or privilege under this Agreement shall operate
as a waiver thereof, nor shall any single or partial exercise of any
right, power or privilege preclude any other or further exercise
thereof, or the exercise of any other right, power or privilege. The
rights and remedies of the Bank provided in this Agreement are
cumulative and not exclusive of any rights or remedies provided by law
or equity or legislation or regulation.
23. MERGER
23.1 The representations and warranties of the Borrower in this
Agreement shall survive the execution of this Agreement and
the making of any Advance or issue of Letter of Credit or
Guarantee under this Agreement and shall inure for the benefit
of the Bank until the Loans have been paid in full by the
Borrower to the Bank.
15
23.2 If the liability of the Borrower to pay the Bank any monies
payable under this Agreement becomes merged in any deed,
judgment, order or other thing the Borrower shall pay interest
on the amount owing from time to time under this Agreement and
that fixed by or payable under that deed, judgment, order or
other thing.
24. TIME OF THE ESSENCE
Time shall be of the essence as regards any date or period determined
under this Agreement save only to the extent that any such date or
period may be altered by mutual agreement between the parties whereupon
time shall be of the essence as regards such altered date or period.
25. SET OFF
25.1 the Borrower and the Bank do expressly acknowledge and agree
that:
25.1.1 Where the Bank now or at any time in the future is
indebted on any account to the Borrower pursuant to
the arrangements made between them such arrangements
are hereinafter referred to as the "Arrangements."
25.1.2 Notwithstanding the Arrangements and any other
provision of this Agreement (and without prejudice to
the Bank's other rights and remedies) any monies
(whether by way of principal interest or otherwise
and whether present future actual or contingent)
which the Bank may now or may hereafter owe to the
Borrower under the Arrangements may be applied to and
set off by the Bank as and when the same may become
due and payable pro rata against the Loans as and
when they become due and payable to the intent and
effect:
(i) first that the Bank may at any time and from
time to time deduct from and retain out of
the monies otherwise payable by the Bank to
the Borrower pursuant to the Arrangements
such amounts as the Bank may think fit and
apply or set off such amounts in or toward
or against satisfaction of the Loans; and
(ii) secondly that upon default by the Borrower
hereunder the Bank shall not be obliged to
pay any monies to the Borrower under the
Arrangements until the obligations of the
Borrower to the Bank to pay any monies to
the Bank hereunder are paid and satisfied in
full.
25.2 The contractual rights of set off conferred on the Bank under
sub-clause 25.1 of this clause are in addition to, and not in
substitution for, any rights of set off otherwise conferred on
or available to the Bank at law or in equity including
(without limitation) any banker's rights of set off or right
of combination of accounts or banker's lien.
25.3 For the avoidance of doubt the Bank and the Borrower further
declare and acknowledge that the debts and liabilities arising
or created hereunder and pursuant hereto and under and
pursuant to the Arrangements are mutual debts within the
meaning of Section 85(1) of the Bankruptcy Xxx 0000 of the
Commonwealth of Australia (as incorporated in the Corporations
Law) and that upon the liquidation or bankruptcy of the
Borrower the provisions of Section 86 of the said Bankruptcy
Act shall apply so that any sum due from the Borrower to the
Bank hereunder shall be set off against any sum due from the
Bank to the Borrower under the Arrangements.
25.4 The Borrower acknowledges and agrees that it will not and will
not attempt to prevent the Bank from exercising its rights of
set off as aforesaid in the circumstances contemplated in
respect thereof.
26. APPROPRIATION
The Bank may appropriate any payment towards the satisfaction of any
monies due by the Borrower in any way that the Bank thinks fit and
notwithstanding any purported appropriation by the Borrower.
16
27. SUCCESSORS
This Agreement shall bind the parties and their respective heirs,
executors, administrators, successors and assigns.
28. ASSIGNMENT
The Bank may at any time assign the benefits and obligations on its
part to be enjoyed or performed under this Agreement. The Borrower
shall not assign or purport to assign any of the benefits or
obligations on its part to be enjoyed or performed under this Agreement
without the consent in writing of the Bank.
29. NOTICES
Any notice, demand, consent or other communication to be given under or
in connection with this Agreement shall be in writing or if it is to be
given by the Bank may be signed by any Authorized Officer of the Bank
or any solicitor for the time being acting for the Bank and if it is to
be given by the Borrower shall be under the common seal of the Borrower
or the hand of an Authorized Officer of the Borrower and may be served
either:
29.1 personally; or
29.2 by posing the same by registered or certified mail to the
party to whom the notice is directed at its address appearing
in this Agreement or at any other address of which prior
notification shall have been given by post shall be deemed to
have been received by the party to whom it is addressed at the
expiration of forty eight (48) hours after the same has been
properly posted; or
29.3 by facsimile transmission;
To the Bank: Bank One, N.A., Xxxxx 00, 00 Xxxxxxxx Xxxxxx,
Xxxxxx XXX 0000
Attention: Xx. X. X. Xxxxxx
Facsimile: (00) 0000 0000
or by other facsimile number of which prior to notification
shall have been given to the sender prior to the transmission
of the facsimile and any facsimile transmission shall be
deemed to have been served on the date of transmission by the
sender if the sender shall receive confirmation of receipt
from the recipient. The original of any facsimile transmission
shall be posted in accordance with sub-clause 29.2 of this
clause on the date of transmission or if transmitted after
usual posting hours the next Business Day.
If the date of dispatch is not a Business Day in the place to which
such notice, request, demand or other communication is sent it shall be
deemed to have been received at the commencement of business on the
next following Business Day in such place. Notice given to any one or
more of the persons (if more than one) comprised in the expressions
"the Borrower" shall be deemed notice to all such persons. Signatures
may be manuscript or may be printed or reproduced by other mechanical
means.
30. OTHER DOCUMENTS
The Borrower shall either before or after the making of any Advance
under this Agreement do all such acts, matters and things and shall
sign or execute and deliver all such documents or writing or assurances
as may in the reasonable opinion of the Bank be necessary or expedient
to further and more effectually carry into full effect the provisions
of this Agreement and for conferring the full benefit thereof upon the
Bank.
31. AMENDMENT
No amendment of this Agreement shall bind the parties unless made in
writing expressed to be supplemental to or in substitution for the
whole or part of this Agreement.
17
32. GOVERNING LAW AND JURISDICTION
This Agreement and the rights and obligations of the parties shall be
governed by and construed in accordance with the laws in force in the
state of
New South Wales and the parties agree by the execution of this
Agreement to irrevocably submit to the non-exclusive jurisdiction of
the Courts in the state of
New South Wales in respect of all matters
arising under or in connection with this Agreement provided always that
the Bank may proceed in the Courts of any Territory State or country
having or claiming jurisdiction in respect of the matter which is the
subject of the proceedings.
33. SEVERANCE
Any provision of this Agreement which is or becomes prohibited,
invalid, unlawful, void or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective and capable of severance without
affecting the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
34. COUNTERPARTS
This Agreement may be executed in any number of counterparts and all of
such counterparts taken together shall be deemed to constitute one and
the same instrument.
35. ENTIRE AGREEMENT
This Agreement contains all of the terms and conditions upon which the
Bank will provide financial accommodation to the Borrower and
supersedes any previous or extant arrangements with respect to the
same.
IN WITNESS WHEREOF the parties have signed this Agreement on the day and year
hereinabove first mentioned.
SIGNED for and on behalf of
BANK ONE, NA
/s/ XXXXXXX X. XXXXXX /s/ XXXXX XXXXXXXX
--------------------------------------- --------------------------------
Authorized Signature (Name/Title) Signature
First Vice President
THE COMMON SEAL OF
Daisytek Australia Pty Ltd
was hereunto affixed in the presence of:
/s/ XXXXXXX XXXXX
--------------------------------------- --------------------------------
Authorized Signatory (Name/Title) Signature
--------------------------------------- --------------------------------
Authorized Signatory (Name/Title) Signature
18
APPENDIX A
FACILITY PRICING: Facility pricing to be determined by the following
grid of Total Debt to EBITDA with Total Debt to
EBITDA definition to match leverage covenant included
in the Term Sheet. Initial pricing shall be set at
Level 3. The calculation of ratios is based on the
accounts of Daisytek, Inc. as stipulated in the
Credit Agreement between Daisytek, Inc. and various
banks dated 12/18 2000.
PRICING GRID
XXXXX 0 XXXXX 0 XXXXX 0 XXXXX 0 XXXXX 5
--------------------------- -------------------- ------------------- -------------------- ------------------ -------------------
Total Debt/EBITDA < 1.0 >=1.0 <1.50 >= 1.50 <2.0 >= 2.0 <2.5 >= 2.5 <3.0
--------------------------- -------------------- ------------------- -------------------- ------------------ -------------------
Facility Fee 20.0 bps 25.0 bps 30.0 bps 37.5 bps 37.5 bps
--------------------------- -------------------- ------------------- -------------------- ------------------ -------------------
Advance Margin 130.0 bps 137.5 bps 157.5 bps 175.0 bps 200.0 bps
--------------------------- -------------------- ------------------- -------------------- ------------------ -------------------
All-In Cost 150.0 bps 162.5 bps 187.5 bps 212.5 bps 237.5 bps
--------------------------- -------------------- ------------------- -------------------- ------------------ -------------------
bps= basis points
19
SCHEDULE I
ADVANCE DRAWDOWN NOTICE
TO: Money Market Desk
BANK ONE, N.A. (A.R.B.N. 065 752 918)
Xxxxx 0
00 Xxxxxxxxx Xxxxxx
XXXXXXXX XX 0000
FAX: 00 0000 0000
In accordance with Facility Agreement dated _______ day of ____________ ("the
Agreement") DAISYTEK AUSTRALIA PTY LTD (A.C.N. 075 675 795) irrevocably gives
you notice of drawdown under the Facility as follows:
ADVANCE
1. Date of Drawdown:
-----------------------------
2. Amount of Drawdown: $
-----------------------------
(currency and amount)
3. Tenor Required:
-----------------------------
4. Other requests/special conditions (if any)
The Borrower by its execution of this Notice reaffirms and reconstitutes all
representations and warranties or agreements of the Borrower in the Agreement as
if made at the date of this Notice and certifies that no Event of Default (as
defined in the Agreement) has occurred or is continuing or is likely to result
from this transaction.
DATED this day of
SIGNED for and on behalf
Daisytek Australia Pty Ltd
--------------------------------------- --------------------------------
Authorized Signatory: Name/Title Signature
--------------------------------------- --------------------------------
Authorized Signatory: Name/Title Signature
20
