Exhibit 10.1
FAI HOME SECURITY PTY LIMITED
(ACN 000 000 000)
FAI INSURANCES LIMITED
(ACN 004 304 545)
_________________________________
REFINANCING AGREEMENT
_________________________________
ATANASKOVIC HARTNELL
--------------------
Lawyers - Corporate, Finance & Taxation
Xxxxx 00
Xxxxxxxxxxx Xxxxxxxx Xxxxx
00-00 Xxxxxxxxx Xxxxxx
Xxxxxx XXX
Xxxxxxxxx 0000
REFINANCING AGREEMENT
AGREEMENT dated between
1. FAI HOME SECURITY PTY LIMITED (ACN 000 000 000) of Xxxxx 0, 00 Xxxxxxx
Xxxxxxx, Xxxxx Xxxxxx, Xxx Xxxxx Xxxxx (the "Borrower"); and
2. FAI INSURANCES LIMITED (ACN 004 304 545) of Xxxxx 00, 00 Xxxxxx Xxxxxx,
Xxxxxx, Xxx Xxxxx Xxxxx (the "Lender").
RECITALS
A. The Borrower and the Lender are parties to a Share Sale Agreement (the
"Share Sale Agreement") dated 31 December 1997 pursuant to which the Lender
agreed to sell and the Borrower agreed to purchase fifty percent of the
shares issued in the capital of FAI Finance Corporation Pty Limited (ACN
053 262 561) (the "Shares").
B. Clause 4.2 of the Share Sale Agreement provided for the payment of the
purchase price for the Shares, partly on completion of the sale and
purchase of the Shares and the balance in amounts and on dates set out in
Clause 4.2(b) of the Share Sale Agreement.
C. The Lender has now agreed, pursuant to a Share Sale Agreement dated on or
about 31 March 2000 (the "New Share Sale Agreement"), to buy back the
Shares from the Borrower. Clause 3.3 of the New Share Sale Agreement also
provides that the Lender must, or must procure a nominee to, pay an
additional advance to the Borrower to allow the Borrower to satisfy all of
its obligations in full under the Promissory Note (the "Additional
Advance"). The amount owing under the Share Sale Agreement plus the
Additional Advance (in aggregate the "Balance") will be, only in the case
of the Additional Advance, made and, in the case of both, repaid in
accordance with the terms of this Agreement.
IT IS AGREED as follows:
1. DEFINITIONS AND 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.
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"Authorisation" includes:
(a) any consents, 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 or the expiry of that period without intervention or action.
"Authorised Officer" means:
(a) in respect of the Borrower, any director or secretary, or any person from
time to time nominated as an Authorised Officer by the Borrower by a notice
to the Lender accompanied by certified copies of signatures of all new
persons so appointed; and
(b) in respect of the Lender, any director or secretary.
"Business Day" means a weekday on which banks are open for business in Sydney.
"Charge" means the deed between the Chargor and the Lender dated on or about the
date of this Agreement.
"Chargor" means Ness Security Products Pty Limited (ACN 069 984 372).
"Drawdown Date" means the date on which the Additional Advance under this
Agreement is or is to be drawn, being the date of Completion (as that term is
defined in the New Share Sale Agreement).
"Drawdown Notice" means a notice under Clause 3.
"Event of Default" means any of the events specified in Clause 12.
"Financial Indebtedness" means any indebtedness, present or future, actual or
contingent in respect of moneys borrowed or raised or any financial
accommodation whatever.
"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.
"Guarantee" means the guarantee given by the Chargor in favour of the Lender
dated on or about the date of this Agreement.
"Integral" means Integral Investments Limited, a British Virgin Islands
corporation.
"Material Adverse Effect" means, in the reasonable opinion of the Lender, a
material adverse effect on the ability of a Relevant Company to perform its
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obligations under a Transaction Document, on the security given to the Lender by
a Relevant Company in respect of the Secured Moneys or on the financial
condition or business of a Relevant Company.
"Mortgaged Property" means the property the subject of the Charge.
"Permitted Security Interest" means any:
(a) sale of any interest in any agreement between a person and the Borrower
under which the Borrower agrees to sell to that person a security alarm
system (whether or not the Borrower also agrees to sell other equipment or
provide other services under the agreement); or
(b) Security Interest entered into in connection with the sale referred to in
paragraph (a).
"Potential Event of Default" means anything which with the giving of notice or
passage of time or both would become an Event of Default and would have a
Material Adverse Effect.
"Promissory Note" means the Secured Promissory Note dated 30 September 1998 (as
amended by an amendment to the Secured Promissory Note dated 31 December 1999)
given by the Borrower in favour of Integral.
"Related Corporation" has the meaning given to "Related Body Corporate" in the
Corporations Law, but on the basis that "Subsidiary" has the meaning given in
this Agreement and that "body corporate" includes any entity or a trust.
"Relevant Company" means the Chargor and the Borrower or any person who gives or
creates a Security Interest which secures any Secured Moneys.
"Secured Moneys" means all money which the Borrower (whether alone or with
another person) is or at any time may become actually or contingently liable to
pay to or for the account of the Lender (whether alone or with another person)
for any reason whatever under or in connection with a Transaction Document.
Without limitation it includes, money by way of principal, interest, fees,
costs, indemnities, charges, duties or expenses or payment of liquidated or
unliquidated damages under or in connection with a Transaction Document, or as a
result of a breach of or default under or in connection with a Transaction
Document.
"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. Without limitation
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.
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"Subsidiary" has the meaning given in the Corporations Law and includes, in
respect of an entity, an entity whose profit or loss is required by current
accounting practice to be included in the consolidated annual profit and loss
statements of that entity or would be required if that entity were a
corporation.
"Tax" includes any tax, 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.
"Term" means the sixty month period commencing on the Drawdown Date.
"Transaction Document" means this Agreement, the Guarantee, the Charge or any
other Security Interest in respect of the Secured Moneys or a document or
agreement entered into or provided under or in connection with, or for the
purpose of amending or novating, any of the above. It includes, without
limitation, an undertaking by or to a party or its lawyers under or in relation
to any of the above.
1.2 Interpretation
Headings are for convenience only and do not affect interpretation. 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.
(d) A reference to a person, corporation, trust, partnership, unincorporated
body or other entity includes any of the foregoing.
(e) A reference to a Clause, Annexure or Schedule is a reference to a clause
of, or annexure or schedule to, this Agreement.
(f) A reference to a party to this Agreement or another agreement or document
includes the party's successors and permitted substitutes or assigns.
(g) 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.
(h) 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.
(i) A reference to "writing" includes a facsimile transmission and any means of
reproducing words in a tangible and permanently visible form.
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(j) A reference to conduct includes, without limitation, an omission, statement
or undertaking, whether or not in writing.
(k) A reference to an "asset" includes any real or personal, present or future,
tangible or intangible property or asset (including, without limitation,
intellectual property) and any right, interest, revenue or benefit in,
under or derived from the property or asset.
(l) Where a provision of this Agreement refers to Secured Moneys being repaid
or paid, it shall be read to include an obligation or requirement included
in the definition of the term "Secured Moneys" being performed or complied
with.
(m) An Event of Default subsists until it has been waived in writing by the
Lender.
(n) A reference to an amount for which a person is "contingently liable"
includes an amount which that person may become actually or contingently
liable to pay if a contingency occurs, whether or not that liability will
actually arise.
1.3 Determination, statement and certificate conclusive
Except where otherwise provided in this Agreement any determination, statement
or certificate by the Lender or an Authorised Officer of the Lender shall, in
the absence of manifest error, be prima facie evidence of the matters stated in
it.
1.4 Document or agreement
A reference to an "agreement" includes a Security Interest, undertaking, deed,
agreement or legally enforceable arrangement whether or not in writing. A
reference to a "document" includes an agreement (as so defined) in writing or a
certificate, notice, instrument or document.
1.5 Listing requirements
A listing rule or business rule of a stock exchange will be regarded as a "law".
2. PURPOSE
(a) The Borrower shall use the Additional Advance for the sole purpose of being
provided to Integral to allow the Borrower to satisfy all of its
obligations in full under Promissory Note.
(b) The Additional Advance will be made by way of direct payment to Integral.
3. MAKING OF ADDITIONAL ADVANCE
(a) Subject to this Agreement, if the Borrower requests the Additional Advance
in a Drawdown Notice, the Lender will make available that Additional
Advance on the Drawdown Date to the account as specified in the Drawdown
Notice.
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(b) The Drawdown Notice is irrevocable. It must be substantially in the form
of Annexure C and be received by the Lender not later than 9 am (Sydney
time) on the proposed Drawdown Date. The Borrower may only give one
Drawdown Notice.
4. EFFECTIVE DATE
This Agreement is effective from the date that the Conditions Precedent in
Clause 9 are satisfied.
5. INTEREST
5.1 Interest Rate
Interest on the outstanding part of the Balance from time to time will accrue
from day to day at the rate of 7.75% per annum calculated on a daily basis and a
year of 365 days.
5.2 Accrued Interest
Interest will accrue, initially; from (and including) the Drawdown Date to (but
excluding) the last Business Day of the month in which the Drawdown Date occurs;
and subsequently from (and including) the last Business Day of the month to (but
excluding) the last Business Day of the next month.
6. REPAYMENT
On the last Business Day of each month during the Term the Borrower will pay to
the Lender in accordance with this Agreement equal instalments comprising both
principal and interest such that the Balance and all accrued interest is repaid
by the last day of the Term.
7. PAYMENTS
7.1 Manner
The Borrower shall make all payments under any Transaction Document:
(a) by bank cheque delivered to the Lender at its address for service of
notices or by transfer of immediately available funds to the account
specified by the Lender from time to time, in either case by 11 am (local
time) on the due date; and
(b) without set-off, counterclaim or other deduction, except any compulsory
deduction for Taxation.
7.2 Appropriation where insufficient moneys available
If an amount required to be paid to the Lender under this Agreement is not paid
in full, such amounts received by the Lender will be appropriated as between
principal,
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interest and other amounts as the Lender determines. This appropriation will
override any appropriation made by the Borrower.
7.3 Gross up
If the Borrower is required by law to deduct or withhold Taxes from any payment
to the Lender the Borrower must:
(a) make the required deductions and withholdings;
(b) pay in accordance with the relevant law the full amount deducted or
withheld;
(c) deliver to the Lender the receipt for each payment; and
(d) increase the amount of the payment to the Lender to an amount which will
result in the receipt by the Lender of the full amount which would have
been payable to the Lender if no deduction or withholding has been
required.
Notwithstanding the above, the Borrower is not required to gross up an amount by
reference to any deduction or withholding it is required to make as a result of
the action of the Lender. In such circumstances, the Lender will accept the net
payment in full satisfaction of the requirement of the Borrower to make the
gross payment.
7.4 Currency of payment
The Borrower must pay all amounts payable under this Agreement in Australian
Dollars.
8. PREPAYMENTS
8.1 Voluntary prepayments
Subject to this Clause, if it first gives at least 30 days notice to the Lender
the Borrower may prepay all or part of the Balance. That notice is irrevocable
and the Borrower shall prepay in accordance with it.
8.2 Voluntary prepayment
Provided the appropriate notice is given, payments under Clause 8.1 may be made
at any time.
8.3 Interest
If the Borrower prepays any amount it shall pay any interest accrued on that
amount.
8.4 Limitation on prepayments
The Borrower, if it decides to prepay part of the Balance, must prepay at least
A$100,000 each time it makes a prepayment and may not prepay any part of the
Advance except in accordance with this Agreement.
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9. CONDITIONS PRECEDENT
This Agreement is subject to the condition precedent that the Lender has
received all of the following in form and substance satisfactory to the Lender:
(a) (Verification certificates) a certificate in relation to the Borrower given
by a director of the Borrower substantially in the form of Annexure A and a
certificate in relation to the Chargor given by a director of the Chargor
substantially in the form of Annexure B, with the attachments referred to
and dated not earlier than 7 days before the date of this Agreement;
(b) (Transaction documents) duly executed Transaction Document; and
(c) (Registration of charge) evidence that the Charge is in duly registrable
form.
10. REPRESENTATIONS AND WARRANTIES
10.1 Representations and warranties
The Borrower makes the following representations and warranties.
(a) (Status) It is a corporation validly existing under the laws of the place
of its incorporation.
(b) (Power) It has the power to enter into and perform its obligations under
this Agreement, to carry out the transactions contemplated by this
Agreement and to carry on its business as now conducted or contemplated.
(c) (Corporate authorisations) It has taken all necessary corporate action to
authorise the entry into and performance of this Agreement, and to carry
out the transactions contemplated by this Agreement.
(d) (Documents binding) This Agreement creates valid and binding obligations
enforceable in accordance with its terms subject to any applicable
bankruptcy, insolvency or other laws affecting creditors rights generally
and to general principles of equity.
(e) (Transactions permitted) The execution and performance by it of this
Agreement and each transaction contemplated under this Agreement did not
and will not 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) its constitution or other constituent documents; or
(iii) any other document or agreement to which it is a party which is
binding on it or its assets,
and did not and will not except as contemplated by the Transaction
Documents:
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(iv) create or impose a Security Interest on any of its assets; or
(v) allow a person to accelerate or cancel an obligation with respect to
Financial Indebtedness, or constitute an event of default,
cancellation event, prepayment event or similar event (whatever
called) under an agreement relating to Financial Indebtedness,
whether immediately or after notice or lapse of time or both.
(f) (Authorisations) Each Authorisation which is required in relation to:
(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) its business as now conducted or contemplated,
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.
(g) (Copies of documents) All copies of documents (including its latest
audited Accounts and all Authorisations) given by it or on its behalf to
the Lender are true and complete copies in all material respects. Except
as disclosed to the Lender in writing prior to the date of this Agreement,
those documents are in full force and effect.
10.2 Reliance on representations and warranties
The Borrower acknowledges that the Lender has entered the Transaction Documents
in reliance on the representations and warranties in this Clause.
11. UNDERTAKINGS
11.1 General Undertakings
The Borrower undertakes as follows:
(a) (Corporate reporting and information) It will provide to the Lender:
(i) (accounts) as soon as practicable, and in any event not later than 60
days after the close of the accounting period to which they relate,
copies of its consolidated and unconsolidated audited annual and
unaudited semi-annual Accounts; and
(ii) (other information) upon request, any other information in relation
to its and each other Relevant Company's financial condition or
business which the Lender may reasonably request.
(b) (Notice to Lender) It will notify the Lender as soon as it becomes aware
of:
(i) any Event of Default or Potential Event of Default;
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(ii) the commencement of any litigation, arbitration or similar
proceedings to which it is a party involving a claim in excess of
A$100,000; and
(iii) any change in its Authorised Officers, giving specimen signatures of
any new Authorised Officer appointed, and, where requested by the
Lender, evidence satisfactory to the Lender of the authority of any
Authorised Officer.
(c) (Negative pledge) It will not create or allow to exist and will ensure
that the Chargor does not create or allow to exist any Security Interest
or arrangement of any kind other than a Permitted Security Interest over
its or the Chargor's assets without the consent of the Lender such consent
not to be unreasonably withheld.
(d) (Books and records) It will maintain proper records and books of account.
It will permit the Lender and authorised persons to inspect those records
and books and all other documents relating to the business of the
Borrower.
(e) (Lender's consent) Where the Borrower has a right or power in relation to
any Mortgaged Property and, in relation to a particular matter, either:
(i) an exercise of that right or power is reasonably likely to have a
Material Adverse Effect; or
(ii) a failure to exercise that right or power is reasonably likely to
have a Material Adverse Effect,
then the Borrower shall provide the Lender with full details in writing as
to the relevant matter and comply with, and ensure that the Chargor
complies with, any reasonable direction the Lender gives in relation to
the matter, including (without limitation) how the Borrower and/or the
Chargor should act in relation to the exercise of the relevant right or
power.
11.2 Term of undertakings
Each undertaking in Clause 11.1 continues from the date of this Agreement until
the Secured Moneys are fully and finally repaid.
12. EVENTS OF DEFAULT
12.1 Events of Default
Each of the following is an Event of Default (whether or not it is in the
control of any Relevant Company).
(a) (Obligations under Transaction Documents) A Relevant Company fails:
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(i) to pay an amount payable by it under any Transaction Document when
due;
(ii) to comply with any of its other obligations under any Transaction
Document and, if in the reasonable opinion of the Lender that failure
can be remedied, that failure is not remedied within 14 days after a
notice is given by the Lender to that Relevant Company requiring it
to be remedied; or
(iii) to satisfy within the stipulated time anything which the Lender made
a condition of its waiving compliance with a condition precedent or
undertaking in a Transaction Document.
(b) (Misrepresentation) A representation, warranty or statement by a Relevant
Company in a Transaction Document, or in a document provided under or in
connection with a Transaction Document, is not true in a material respect
or is misleading when made or repeated.
(c) (Cross default)
(i) Financial Indebtedness of a Relevant Company:
(A) is not paid when due and such non payment is reasonably likely to
have a Material Adverse Effect; or
(B) becomes due and payable or capable of being declared due and
payable before its stated maturity or expiry and that fact is
reasonably likely to have a Material Adverse Effect;
(ii) a facility or obligation granted or owed by a person to a Relevant
Company to provide financial accommodation or to acquire or
underwrite Financial Indebtedness is prematurely terminated due to
the default of that Relevant Company and that termination is
reasonably likely to have a Material Adverse Effect; or
(iii) an event of default as defined in another Transaction Document
occurs.
(d) (Administration, winding up, arrangements, insolvency etc.)
(i) An administrator of a Relevant Company is appointed.
(ii) Except for the purposes of a solvent reconstruction or amalgamation
previously approved by the Lender:
(A) an application (not being an application withdrawn or dismissed
within 7 days) or an order is made, proceedings are commenced, a
resolution is passed or proposed in a notice of meeting or other
steps (other than proceedings, applications and steps which are
frivolous or vexatious) are taken for:
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(I) the winding up, dissolution, official management or
administration of any Relevant Company; or
(II) a Relevant Company entering into any arrangement, compromise
or composition with or assignment for the benefit of its
creditors or any class of them; or
(B) a Relevant Company ceases, suspends or threatens to cease or
suspend the conduct of all or a substantial part of its business
or disposes of or threatens to dispose of a substantial part of
its assets; or
(iii) A Relevant Company is, or under an applicable legislation is taken to
be, unable to pay its debts (other than as a result of the 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.
(e) (Enforcement against assets)
(i) A receiver, receiver and manager, administrative receiver or similar
officer is appointed to;
(ii) a Security Interest becomes enforceable or 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 a Relevant Company.
(f) (Reduction of capital) Without the prior consent of the Lender, a Relevant
Company:
(i) reduces its capital (including, without limitation, a purchase of its
shares);
(ii) passes a resolution to reduce its capital or to authorise it to
purchase its shares or, where the meeting is capable of approving
such a resolution, 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.
(g) (Analogous process) Anything which is analogous to anything referred to in
paragraphs (d) to (f) inclusive or which has substantially similar effect
occurs with respect to any Relevant Company under any overseas law or any
law which commences or is amended after the date of this Agreement.
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(h) (Vitiation of Transaction Documents)
(i) All of a Transaction Document is terminated or is or become void,
illegal, invalid, unenforceable or of limited force and effect; or
part of a Transaction Document is terminated or become void,
illegal, invalid, unenforceable or of limited force and effect and
that fact is likely to have a Material Adverse Effect;
(ii) a party becomes entitled to terminate, rescind or avoid all of a
Transaction Document; or a party becomes entitled to terminate,
rescind or avoid part of a Transaction Document and that fact is
likely to have a Material Adverse Effect; or
(iii) a party other than the Lender alleges or claims that an event
described in sub-paragraph (i) has occurred or that it is entitled
as described in sub-paragraph (ii).
(i) (Material Adverse Change) Any other event or series of events, whether
related or not, occurs (including, without limitation, a material adverse
change in the business, assets or financial condition of any Relevant
Company or the value of the Mortgaged Property), which in the reasonable
opinion of the Lender is likely to have a Material Adverse Effect.
(j) (Control) Without the prior consent of the Lender (such consent not to be
unreasonably withheld) the Borrower ceases to legally and beneficially own
100% of the issued shares of the Chargor.
12.2 Consequences
In addition to any other rights provided by law or any Transaction Document, at
any time after an Event of Default (whether or not it is continuing) or a
Potential Event of Default the Lender may do all or any of the following:
(a) by notice to the Borrower declare all Secured Moneys immediately due and
payable, and the Borrower will immediately pay the Secured Moneys; and/or
(b) enforce the Guarantee and Charge.
13. INTEREST ON OVERDUE AMOUNTS
13.1 Accrual
Interest accrues on each unpaid amount which is due and payable by the Borrower
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;
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(b) both before and after judgment (as a separate and independent obligation);
and
(c) at the rate determined by the Lender to be the sum of 2% per annum plus
the rate (if any) applicable to the unpaid amount immediately before the
due date.
13.2 Payment
The Borrower shall pay interest accrued under this Clause on demand. That
interest is payable in the currency of the unpaid amount on which it accrues.
14. INDEMNITIES
On demand the Borrower shall indemnify the Lender against any loss, cost,
charge, liability or expense the Lender may sustain or incur as a direct or
indirect consequence of:
(a) the occurrence of any Event of Default or Potential Event of Default;
(b) any exercise or attempted exercise of any right, power or remedy under any
Transaction Document or any failure to exercise any right, power or
remedy; or
(c) the Balance not being provided for any reason (including, without
limitation, failure to fulfil a condition precedent but excluding default
by the Lender).
15. CONTROL ACCOUNTS
The accounts kept by the Lender constitute sufficient evidence unless the
contrary is proved of the amount at any time due from the Borrower under this
Agreement.
16. EXPENSES
(a) Each party will bear their own costs and expenses in relation to the
preparation, execution and completion of the Transaction Documents.
(b) On demand the Borrower shall reimburse the Lender for all costs and
expenses in relation to the actual or contemplated enforcement of, or
actual or contemplated exercise or preservation of any rights powers or
remedies under, the Transaction Documents, including in each case legal
costs and expenses (including in-house lawyers charged at their usual
rates) on a full indemnity basis.
17. STAMP DUTIES
(a) The Borrower shall 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.
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(b) Those Taxes include financial institutions duty, debits tax or other Taxes
payable by return and Taxes passed on to the Lender by a bank or financial
institution.
(c) On demand the Borrower shall indemnify the Lender against any liability
resulting from delay or omission to pay those Taxes.
18. WAIVERS REMEDIES CUMULATIVE
(a) No failure 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 Lender in the Transaction
Documents are in addition to, and do not exclude or limit, any right,
power or remedy provided by law.
19. CONSENTS AND OPINIONS
Except where expressly stated the Lender may give or withhold, or give
conditionally, approvals and consents, may be satisfied or unsatisfied, may form
opinions, and may exercise its rights, powers and remedies, at its absolute
discretion.
20. SEVERABILITY OF PROVISIONS
Any provision of any Transaction Document which is prohibited or unenforceable
in any jurisdiction is ineffective as to that jurisdiction 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.
21. SURVIVAL OF REPRESENTATIONS AND INDEMNITIES
(a) All representations and warranties in a Transaction Document survive the
execution and delivery of the Transaction Documents and the provision of
advances and accommodation.
(b) Each indemnity in a Transaction Document:
(i) is a continuing obligation;
(ii) is a separate and independent obligation; and
(iii) survives termination or discharge of the Transaction Document.
22. MORATORIUM LEGISLATION
To the full extent permitted by law all legislation which at any time directly
or indirectly:
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(a) lessens, varies or affects in favour of the Borrower any obligation under a
Transaction Document; or
(b) delays, prevents or prejudicially affects the exercise by the Lender of any
right, power or remedy conferred by a Transaction Document,
is excluded from the Transaction Documents.
23. ASSIGNMENTS
23.1 Assignment by Borrower
The Borrower may not assign or transfer any of its rights or obligations under
this Agreement without the prior written consent of the Lender.
23.2 Disclosure
The Lender may disclose to a proposed assignee, transferee or sub-participant
information which relates to a Relevant Company or was furnished in connection
with the Transaction Documents.
24. NOTICES
All notices, requests, demands, consents, approvals, agreements or other
communications to or by a party to this Agreement:
(a) must be in writing;
(b) must be signed by an Authorised Officer of the sender; and
(c) will be taken to be duly given or made (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 (provided in the case of the
Lender, such other notified address is within Australia), 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.
25. AUTHORISED OFFICERS
The Borrower irrevocably authorises the Lender to rely on a certificate by a
person purporting to be its director or secretary as to the identity and
signatures of its Authorised Officers. The Borrower warrants that those persons
have been authorised to give notices and communications under or in connection
with the Transaction Documents.
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26. GOVERNING LAW AND JURISDICTION
This Agreement is governed by the laws of New South Wales. The Borrower submits
to the non-exclusive jurisdiction of courts exercising jurisdiction there.
27. COUNTERPARTS
This Agreement may be executed in any number of counterparts. All counterparts
together will be taken to constitute one instrument.
28. ACKNOWLEDGEMENT BY BORROWER
The Borrower confirms that:
(a) it has not entered into any Transaction Document in reliance on, or as a
result of, any statement or conduct of any kind of or on behalf of the
Lender or any Related Corporation of the Lender (including, without
limitation, any advice, warranty, representation or undertaking); and
(b) neither the Lender nor any Related Corporation of the Lender is obliged to
do anything (including, without limitation, disclose anything or give
advice),
except as expressly set out in the Transaction Documents or in writing duly
signed by or on behalf of the Lender or Related Corporation.
29. ATTORNEY
29.1 Appointment and power
The Borrower irrevocably appoints the Lender its attorney ("Attorney") with
the right:
(a) at any time to:
(i) comply with the obligations of the Borrower under this
Agreement;
(ii) do everything which in the Attorney's opinion is necessary or
expedient to enable the exercise of any right of the Lender in
relation to this Agreement;
(iii) complete this Agreement; and
(iv) appoint substitutes and otherwise delegate its powers (including
this power of delegation); and
(b) after any Event of Default has occurred to do everything that the
Borrower may lawfully authorise an agent to do in relation to this
document.
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29.2 General
(c) Any attorney may exercise its rights notwithstanding that the exercise of
the right constitutes a conflict of interest or duty.
(d) The Borrower will from time to time and at all times ratify any exercise of
a right by an Attorney.
(e) This power of attorney is granted to secure compliance by the Borrower with
its obligations to the Lender under the Transaction Documents and any
proprietary interest of the Lender under the Transaction Documents.
(f) The Lender indemnifies and will keep indemnified any Attorney against any
liability, loss, cost, expense or damage arising from the lawful exercise
of any right by the Attorney under this power of attorney.
(g) This power of attorney is granted for valuable consideration (receipt of
which is acknowledged) which includes the execution of this document by the
Lender at the Borrower's request.
EXECUTED in Sydney.
Each attorney executing this Agreement states that he has no notice of
revocation or suspension of his power of attorney.
SIGNED for and on behalf of FAI )
HOME SECURITY PTY LIMITED by )
)
who certifies that they are duly appointed as )
the attorney of FAI HOME SECURITY )
PTY LIMITED and that they )
have not received notification of the ) ___________________________
revocation of the power of attorney under )
the authority of which they have executed )
this Deed in the presence of: )
_____________________________________ Signature of Witness
_____________________________________ Print Name of Witness
19
SIGNED for and on behalf of the )
FAI INSURANCES LIMITED by )
)
who certifies that they are duly appointed as )
the attorney of FAI INSURANCES )
LIMITED and that they )
have not received notification of the ) ___________________________
revocation of the power of attorney under )
the authority of which they have executed )
this Deed in the presence of: )
_____________________________________ Signature of Witness
_____________________________________ Print Name of Witness
20
ANNEXURE A
BORROWER'S VERIFICATION CERTIFICATE
To: FAI Insurances Limited
Xxxxx 00
00 Xxxxxx Xxxxxx
Xxxxxx XXX 0000
REFINANCING AGREEMENT
I [*] am a director of FAI Home Security Pty Limited (the "Company").
I refer to the Refinancing Agreement dated [*] between the Company and FAI
Insurances Limited (the "Refinancing Agreement").
Terms defined in the Refinancing Agreement bear the same meaning when used in
this Certificate.
I CERTIFY as follows:
1. Attached to this Certificate are true, complete and up to date copies of
each of the following:
(a) the constituent documents of the Company (marked "A");
(b) a duly stamped [and registered] power of attorney granted by the
Company for the purpose of permitting the execution on behalf of the
Company of the Refinancing Agreement and the other Transaction
Documents (marked "B"). That power of attorney has not been revoked by
the Company and remains in full force and effect; and
(c) extract of minutes of a meeting of the directors of the Company
approving execution of the Refinancing Agreement and the other
Transaction Documents, appointing attorneys for the purpose of
execution of the Refinancing Agreement and the other Transaction
Documents and appointing Authorised Officers of the Company for the
purpose of the Refinancing Agreement (marked "C"). Those resolutions
have not been amended, modified or revoked and are in full force and
effect.
2. The following signatures are the true signatures of the Authorised Officers
of the Company and the persons who have been authorised to sign the
Refinancing Agreement and the other Transaction Documents and to give
notices and communications under or in connection with the Refinancing
Agreement and the other Transaction Documents.
2
Authorised Officers:
Name Position Signature
* * ________________
* * ________________
* * ________________
Signatories:
* * ________________
* * ________________
* * ________________
Signed: _________________________
Director
Dated [*]
3
ANNEXURE B
CHARGOR'S VERIFICATION CERTIFICATE
To: FAI Insurances Limited
Xxxxx 00
00 Xxxxxx Xxxxxx
Xxxxxx XXX 0000
REFINANCING ARRANGEMENT
I [*] am a director of Ness Security Products Pty Limited (the "Company").
I refer to the facility agreement dated [*] between FAI Home Security Pty
Limited ("HSPL") and FAI Insurances Limited (the "Refinancing Agreement").
Terms defined in the Refinancing Agreement bear the same meaning when used in
this Certificate.
I CERTIFY as follows:
1. Attached to this Certificate are true, complete and up to date copies of
each of the following:
(a) the constitution of the Company (marked "A");
(b) a duly stamped [and registered] power of attorney granted by the
Company for the purpose of permitting the execution on behalf of the
Company of the Transaction Documents (marked "B"). That power of
attorney has not been revoked by the Company and remains in full force
and effect; and
(c) extract of minutes of a meeting of the directors of the Company
approving execution of the Transaction Documents, appointing attorneys
for the purpose of execution of the Transaction Documents (marked
"C"). Those resolutions have not been amended, modified or revoked and
are in full force and effect.
2. The following signatures are the true signatures of the persons who have
been authorised to sign the Transaction Documents and to give notices and
communications under or in connection with the Transaction Documents.
Signatories:
* * _______________
* * _______________
* * _______________
Signed: _________________________
Director
Dated [*]
2
ANNEXURE C
DRAWDOWN NOTICE
DRAWDOWN NOTICE
To: FAI Insurances Limited
Xxxxx 00
00 Xxxxxx Xxxxxx
Xxxxxx XXX 0000
We refer to the Refinancing Agreement dated [*] between FAI Home Security Pty
Limited and FAI Insurances Limited (the "Refinancing Agreement").
Under Clause 3 of the Refinancing Agreement:
(1) we give you irrevocable notice that we wish to make a drawdown on [*] (the
"Drawdown Date");
(2) the principal amount to be drawn is [*];
(3) we irrevocably direct you to pay all proceeds to Integral Investments
Limited (account number [*] at [*]);
(4) we represent and warrant that:
(a) [(except as disclosed in paragraph (c)] the representations and
warranties in the Refinancing Agreement are true as though they had
been made at the date of this Drawdown Notice and the Drawdown Date
specified above in respect of the facts and circumstances then
subsisting; [and]
(b) [(except as disclosed in paragraph (c)] no Event of Default or
Potential Event of Default is subsisting or will result from the
drawing; [and]
(c) [details of the exceptions to paragraphs (a) and (b) are as follows:
[*], and we [have taken/propose] the following remedial action [*].]
Definitions in the Refinancing Agreement apply in this Drawdown Notice.
On behalf of
FAI HOME SECURITY PTY LIMITED
By: [Authorised Officer]
Dated [*]
2
