1
EXHIBIT 10.35
COMWELD GROUP PTY LIMITED
(Borrower)
----------------------------
SIXTH VARIATION AGREEMENT
SYNDICATED CREDIT AGREEMENT
----------------------------
(C) XXXXX XXXXX & XXXXXXX
Xxxxxx
REF: KLO 1138940 JCC
2
TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. AUTHORISED OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3. AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
4. EFFECTIVE DATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
5. CONSENT OF GUARANTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
6. STAMP DUTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
7. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
8. COUNTERPARTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
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SIXTH VARIATION AGREEMENT
AGREEMENT dated 18 January 1996 between:
1. COMWELD GROUP PTY LTD (formerly called Edinen Pty Ltd) (ACN 007 226
815) incorporated in Victoria of 00 Xxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx
(the BORROWER);
2. DUXTECH PTY LIMITED (ACN 007 211 190) incorporated in Victoria
(DUXTECH), QUETACK PTY LIMITED (ACN 007 226 575) incorporated in
Victoria (QUETACK) and QUETALA PTY LIMITED (ACN 007 246 862)
incorporated in Victoria in its personal capacity and as trustee of
the Trust (QUETALA) each of 00 Xxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx (each
a GUARANTOR);
3. THERMADYNE AUSTRALIA PTY LIMITED (ACN 071 843 028) incorporated in
Victoria of Xxxx 0, Xxxxx 00, 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx
(THERMADYNE AUSTRALIA);
4. EACH BANK OR FINANCIAL INSTITUTION named in Schedule 1 (each a
LENDER); and
5. BT MANAGEMENT SERVICES PTY LTD (ACN 008640 168) of The Xxxxxxx Xxxxx,
0 Xxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx as agent for the Lenders (in
this capacity, the AGENT).
RECITALS
A. The parties, other than Thermadyne Australia, are parties to a credit
agreement dated 3 August 1989 (as amended and novated from time to
time, the CREDIT AGREEMENT).
B. By a Lender Transfer dated about the date of this Agreement, the
Lenders took over the rights and obligations of Toronto Dominion
Australia Limited (ACN 004 858 020) and Societe Generale Australia
Limited (ACN 002 093 021) under the Credit Agreement.
C. By a Deed of Retirement and Appointment dated the date of this
Agreement the Agent replaced Toronto Dominion Australia Limited as
agent of the Lenders.
D. The parties wish to amend the Credit Agreement in the manner set out
in this Agreement. Thermadyne Australia wishes to become a party to
the Credit Agreement, to give the representations, undertakings and
agreements expressed to be given by it in Annexure A.
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement terms defined in Annexure A have the same meanings.
1.2 INTERPRETATION
Clauses 1.2, 1.3 and 1.9 of Annexure A apply as if incorporated in
this Agreement.
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Page 2
1.3 TRANSACTION DOCUMENT
This Agreement is a Transaction Document within the meaning of
Annexure A.
2. AUTHORISED OFFICERS
Each of the Borrower, Thermadyne Australia and each Guarantor agrees
to deliver to the Agent on the date of this Agreement, notice, in the
form of Schedule 2, of their respective Authorised Officers.
3. AMENDMENTS
The Credit Agreement is amended to read as set out in Annexure A.
4. EFFECTIVE DATE
This Agreement takes effect, and the parties agree to be bound by the
Credit Agreement as amended by this Agreement, from the date of this
Agreement.
5. CONSENT OF GUARANTORS
Each Guarantor consents to the transactions contemplated by this
Agreement and confirms that its guarantee, and each Security Document
created by it, covers the Credit Agreement as amended by this
Agreement.
6. STAMP DUTIES
The Borrower shall pay all stamp, transaction, registration, financial
institutions, debit and other duties and taxes (including fines and
penalties) on or in relation to the execution, delivery, performance
or enforcement of this Agreement or any payment or receipt or other
transaction contemplated by this Agreement.
7. GOVERNING LAW
This Agreement is governed by the laws of Victoria.
8. COUNTERPARTS
This Agreement may be executed in any number of counterparts. All
counterparts taken together are deemed to constitute one instrument.
EXECUTED as an agreement in Melbourne on the terms of an Escrow Deed between
the parties and others.
Each attorney executing this Agreement states that he has no notice of the
revocation or suspension of his power of attorney.
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Page 3
BORROWER
SIGNED on behalf of ) /s/ XXXXX X. XXXX
COMWELD GROUP PTY LIMITED ) --------------------------------
by its attorney in the presence of: ) Attorney
/s/ XXXXXXXXX XXXXXXXXX Xxxxx X. Xxxx
--------------------------------- --------------------------------
Witness Print name
Xxxxxxxxx Xxxxxxxxx
---------------------------------
Print name
GUARANTORS
SIGNED on behalf of ) /s/ XXXXX X. XXXX
DUXTECH PTY LIMITED ) --------------------------------
by its attorney in the presence of: ) Attorney
/s/ XXXXXXXXX XXXXXXXXX Xxxxx X. Xxxx
--------------------------------- --------------------------------
Witness Print name
Xxxxxxxxx Xxxxxxxxx
---------------------------------
Print name
SIGNED on behalf of ) /s/ XXXXX X. XXXX
QUETALA PTY LIMITED ) --------------------------------
by its attorney in the presence of: ) Attorney
/s/ XXXXXXXXX XXXXXXXXX Xxxxx X. Xxxx
--------------------------------- --------------------------------
Witness Print name
Xxxxxxxxx Xxxxxxxxx
---------------------------------
Print name
SIGNED on behalf of ) /s/ XXXXX X. XXXX
QUETACK PTY LIMITED ) --------------------------------
by its attorney in the presence of: ) Attorney
/s/ XXXXXXXXX XXXXXXXXX Xxxxx X. Xxxx
--------------------------------- --------------------------------
Witness Print name
Xxxxxxxxx Xxxxxxxxx
---------------------------------
Print name
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Page 4
THERMADYNE AUSTRALIA
SIGNED on behalf of ) /s/ XXXXX X. XXXX
THERMADYNE AUSTRALIA PTY LIMITED ) --------------------------------
by its attorney in the presence of: ) Attorney
/s/ XXXXXXXXX XXXXXXXXX Xxxxx X. Xxxx
--------------------------------- --------------------------------
Witness Print name
Xxxxxxxxx Xxxxxxxxx
---------------------------------
Print name
LENDER
SIGNED on behalf of ) /s/ X. X. XXXXXX
BANKERS TRUST AUSTRALIA LIMITED ) --------------------------------
by its attorney in the presence of: ) Attorney
/s/ XXXX XXXXXX X. X. Xxxxxx
--------------------------------- --------------------------------
Witness Print name
X. Xxxxxx
---------------------------------
Print name
AGENT
SIGNED on behalf of ) /s/ X. X. XXXXXX
BT MANAGEMENT SERVICES PTY LIMITED ) --------------------------------
by its attorney in the presence of: ) Attorney
/s/ XXXX XXXXXX X. X. Xxxxxx
--------------------------------- --------------------------------
Witness Print name
X. Xxxxxx
---------------------------------
Print name
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SIXTH VARIATION AGREEMENT
SCHEDULE 1
LENDERS
1. Bankers Trust Australia Limited (ACN 000 000 000) of Xxxxx 00, Xxx
Xxxxxxx Xxxxx, 0 Xxxxxxx Xxxxxx, Xxxxxx XXX 0000.
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SIXTH VARIATION AGREEMENT
SCHEDULE 2
CERTIFICATE OF AUTHORISED OFFICERS
TO: BT Management Services Pty Limited
for itself and as Agent for the Lenders under the Credit Agreement defined
below, and to its substitutes and assigns.
SYNDICATED CREDIT FACILITY
I [*] am a director of [*] Limited of [*] (the COMPANY).
I refer to the Syndicated Credit Agreement (the CREDIT AGREEMENT) dated 3
August 1989 as amended and restated on [*] 1996 between Comweld Group Pty
Limited as Borrower, Duxtech Pty Limited, Quetala Pty Limited and Quetack Pty
Limited as Guarantors, the Lenders named in the Credit Agreement and BT
Management Services Pty Limited as Agent.
Definitions in the Credit Agreement apply in this Certificate.
I CERTIFY that the following are signatures of the Authorized Officers of the
Company and the persons who have been authorized to give notices and
communications under or in connection with the Transaction Documents.
AUTHORISED OFFICERS
NAME POSITION SIGNATURE
* *
* *
* *
Signed:
------------------- -----------------------
Director
-----------------------
-------------------
Print name -----------------------
DATED 1996
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SIXTH VARIATION AGREEMENT
ANNEXURE A
AMENDED AND RESTATED CREDIT AGREEMENT
10
COMWELD GROUP PTY LIMITED
(Borrower)
SYNDICATED CREDIT AGREEMENT
AS AMENDED AND RESTATED
(C) XXXXX XXXXX & XXXXXXX
Xxxxxx
Ref: KLO 1138940 JCC
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TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1.3 Determination, statement and certificate . . . . . . . . . . . . . . . . . . . . . . . . 12
1.4 Document or agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
1.5 Repayment and prepayment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
1.6 Principal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
1.7 Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
1.8 Listing requirements included as law . . . . . . . . . . . . . . . . . . . . . . . . . . 13
1.9 Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
1.10 Current accounting practice and accounting terms . . . . . . . . . . . . . . . . . . . . 13
1.11 Date of this Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
1.12 Transitional . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
1.13 Relevant Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2. COMMITMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.1 Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.2 Allocation among Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.3 Obligations several . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3. CANCELLATION OF COMMITMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.1 During Availability Period. Revolving Credit Commitments . . . . . . . . . . . . . . . . 14
3.2 At end of Availability Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.3 Reduction on repayment or prepayment - Term Facility . . . . . . . . . . . . . . . . . . 14
4. PURPOSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5. DRAWDOWN NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.1 When notice to be given . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.2 Notice of Facility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.3 Notification of Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6. SWITCHING, SPLITTING AND COMBINATION OF SEGMENTS . . . . . . . . . . . . . . . . . . . . . . . . . 15
6.1 Between Facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6.2 Limitations on switching . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6.3 Splitting and combination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
7. AMOUNT AND NUMBER OF SEGMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
7.1 Principal amount of Segments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
7.2 Number of Segments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
8. SELECTION NOTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
8.1 When Notice to be given . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
8.2 Failure to give Selection Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
8.3 Notification of Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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Page (ii)
9. SELECTION OF FUNDING PERIODS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
10. REPAYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
10.1 Repayment - Term Facility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
10.2 Repayment - Revolving Credit Facility . . . . . . . . . . . . . . . . . . . . . . . . . 17
10.3 Allocation among Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
10.4 Allocation among Segments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
11. PREPAYMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
11.1 Voluntary prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
11.2 Prepayments of Term Facility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
11.3 Voluntary prepayment on expiry of Funding Period . . . . . . . . . . . . . . . . . . . . 18
11.4 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
11.5 Limitation on prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
11.6 Application against repayment instalments. . . . . . . . . . . . . . . . . . . . . . . . 18
11.7 Apportionment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
11.8 No redrawing - Term Facility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
11.9 Redrawing - Revolving Credit Facility . . . . . . . . . . . . . . . . . . . . . . . . . 19
12. TERM FACILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
12.1 Switch from Xxxx Facility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
12.2 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
12.3 Preparation of Reliquefication Bills . . . . . . . . . . . . . . . . . . . . . . . . . . 19
12.4 Requirements of Reliquefication Bills . . . . . . . . . . . . . . . . . . . . . . . . . 19
12.5 Dealing with Reliquefication Bills . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
12.6 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
12.7 Stamp duty on Reliquefication Bills . . . . . . . . . . . . . . . . . . . . . . . . . . 20
13. LC FACILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
13.1 Issue of Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
13.2 Form and Beneficiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
13.3 Expiry date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
13.4 Cap and amount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
13.5 Secured Financing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
13.6 Lender as Beneficiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
13.7 Agent's authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
13.8 Notification of issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
13.9 Drawings procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
13.10 Recovery by Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
13.11 Payment of Secured Financings by Borrower . . . . . . . . . . . . . . . . . . . . . . . 22
13.12 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
13.13 Obligations unconditional . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
13.14 Indemnity from Lenders to Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
14. CASH FACILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
14.1 Advance of Segment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
14.2 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
15. XXXX FACILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
15.1 Preparation of bills . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
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Page (iii)
15.2 Requirements of Bills . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
15.3 Authority to complete Bills . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
15.4 Restriction on use of Bills by Agent and Lenders . . . . . . . . . . . . . . . . . . . . 24
15.5 Notification of Bank Xxxx Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
15.6 Acceptance and discount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
15.7 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
15.8 Cash cover . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
15.9 Netting off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
15.10 Variation of procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
15.11 Overdraft if no rollover . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
16. PAYMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
16.1 Manner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
16.2 Payment to be made on Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
16.3 Distribution by Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
16.4 Appropriation where insufficient moneys available . . . . . . . . . . . . . . . . . . . 26
16.5 Unanticipated default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
16.6 Rounding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
17. CHANGES IN LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
17.1 Increased costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
17.2 Minimisation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
17.3 Survival of obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
17.4 Prepayment on increased costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
17.5 Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
18. CONDITIONS PRECEDENT TO EACH SEGMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
19. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
19.1 Representations and warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
19.2 Trustee representations and warranties . . . . . . . . . . . . . . . . . . . . . . . . . 32
19.3 Reliance on representations and warranties . . . . . . . . . . . . . . . . . . . . . . . 33
20. UNDERTAKINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
20.1 General undertakings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
20.2 Undertakings relating to Mortgaged Property . . . . . . . . . . . . . . . . . . . . . . 41
20.3 Undertakings relating to Marketable Securities . . . . . . . . . . . . . . . . . . . . . 45
20.4 Financial undertakings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
20.5 Prepayment on change in distribution of assets . . . . . . . . . . . . . . . . . . . . . 48
20.6 Undertakings relating to Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
20.7 Term of undertakings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
21. DESIGNATED EVENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
21.1 Designated Events . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
21.2 Consequences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
21.3 Cash cover for Letters of Credit and Bills . . . . . . . . . . . . . . . . . . . . . . . 54
21.4 Technical default in payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
22. GUARANTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
22.1 Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
14
Page (iv)
22.2 Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
22.3 Unconditional nature of obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
22.4 No marshalling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
22.5 No competition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
22.6 Suspense account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
22.7 Rescission of payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
22.8 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
22.9 Continuing guarantee and indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
22.10 Variations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
22.11 judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
22.12 Conditions precedent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
23. INTEREST ON OVERDUE AMOUNTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
23.1 Accrual and payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
23.2 Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
24. FEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
24.1 Revolving Credit Facility fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
24.2 Letter of credit fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
24.3 Issuance fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
24.4 Agent's fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
25. INDEMNITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
26. CONTROL ACCOUNTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
27. EXPENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
28. STAMP DUTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
29. SET-OFF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
30. WAIVERS, REMEDIES CUMULATIVE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
31. SEVERABILITY OF PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
32. SURVIVAL OF REPRESENTATIONS AND INDEMNITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
33. MORATORIUM LEGISLATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
34. ASSIGNMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
34.1 Assignment by Borrower and Guarantor . . . . . . . . . . . . . . . . . . . . . . . . . . 63
34.2 Assignment by Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
34.3 Substitution certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
34.4 Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
34.5 No increased costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
35. RELATIONSHIP OF LENDERS TO AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
35.1 Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
35.2 Instructions; extent of discretion . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
35.3 No obligation to investigate authority . . . . . . . . . . . . . . . . . . . . . . . . . 65
35.4 Agent not a fiduciary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
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Page (v)
35.5 Exoneration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
35.6 Delegation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
35.7 Reliance on documents and experts . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
35.8 Notice of transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
35.9 Notice of default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
35.10 Agent as Lender and banker . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
35.11 Indemnity to Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
35.12 Independent investigation of credit . . . . . . . . . . . . . . . . . . . . . . . . . . 66
35.13 No monitoring . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
35.14 Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
35.15 Replacement of Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
35.16 Amendment of Transaction Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
36. PROPORTIONATE SHARING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
36.1 Sharing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
36.2 Refusal to join in action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
36.3 Sharing when Secured Financing or Bills repaid directly . . . . . . . . . . . . . . . . 68
37. AGENT DEALINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
38. CONFIDENTIALITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
38.1 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
38.2 Permitted disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
38.3 Survival of obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
39. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
40. AUTHORISED OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
41. GOVERNING LAW AND JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
42. COUNTERPARTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
43. ACKNOWLEDGEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
44. CONSENTS AND OPINIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
45. SECURITY DOCUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SCHEDULE 1 - LENDERS
ANNEXURE A - DRAWDOWN NOTICE
ANNEXURE B - SELECTION NOTICE
ANNEXURE C - LETTER OF CREDIT AUTHORIZATION
ANNEXURE D - FORM OF LETTER OF CREDIT
ANNEXURE E - FINANCIAL INDEBTEDNESS
ANNEXURE F - SUBSTITUTION CERTIFICATE
ANNEXURE G - EXECUTIVE CONTRACT
16
SYNDICATED CREDIT AGREEMENT
AGREEMENT dated 3 August 1989, as amended and restated to 18 January 1996
between:
1. COMWELD GROUP PTY LTD (formerly called Edinen Pty Ltd) (ACN 007 226
815) incorporated in Victoria of 00 Xxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx
(the BORROWER);
2. DUXTECH PTY LIMITED (ACN 007 211 190) incorporated in Victoria of 00
Xxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx (DUXTECH), QUETACK PTY LIMITED (ACN
007 226 575) incorporated in Victoria of 00 Xxxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxx (QUETACK) and QUETALA PTY LIMITED (ACN 007 246 862)
incorporated in Victoria of 00 Xxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx in
its personal capacity and as trustee of the Trust (QUETALA);
3. THERMADYNE AUSTRALIA PTY LIMITED (ACN 071 843 028) incorporated in
Victoria of Xxxx 0, Xxxxx 00, 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx
(THERMADYNE AUSTRALIA);
4. EACH BANK OR FINANCIAL INSTITUTION named in Schedule 1 (each a
LENDER); and
5. BT MANAGEMENT SERVICES PTY LTD (ACN 008 640 168) of The Xxxxxxx
Xxxxx, 0 Xxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx as agent for the
Lenders (in this capacity, the AGENT).
RECITAL
The Borrower and each of Thermadyne Australia, Duxtech, Quetack and Quetala
have requested the Lenders to provide the Borrower with facilities under which
financial accommodation of up to a maximum amount of A$37,000,000 may be made
available to the Borrower.
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
The following definitions apply unless the context requires
otherwise.
ACCOMMODATION DATE means a Drawdown Date or a Selection Date.
ACCOUNTS means profit and loss accounts, balance sheets and cash flow
statements together with any statements, reports (including, without
limitation, any directors' and auditors' reports) and notes attached
to or intended to be read with any of them.
ASSOCIATE in relation to an entity means:
(a) a Related Corporation of that entity;
(b) an entity, or the trustee or manager of a trust, which has a
Controlling Interest in that entity, the Trust, or the
manager or trustee of the Trust or a Related Corporation of
that entity;
(c) a Related Corporation of an entity included in paragraph (b)
or (e);
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Page 2
(d) an executive director of that entity or an entity included
in paragraph (a), (b) or (c) or of the manager or of the
trustee of any trust included in paragraph (a), (b) or (c)
or a spouse, child, parent or sibling of that director;
(e) a corporation, or the trustee or manager of a trust, in
which one or more entity or person mentioned in paragraph
(a), (b), (c), (d), (e), (f) or (g) alone or together has a
Controlling Interest;
(f) the trustee of a discretionary trust of which an entity or
person included in paragraph (a), (b), (c), (d), (e) or (g)
is a beneficiary (whether or not through one or more other
discretionary trusts); or
(g) an entity of which an executive director of that entity or a
Related Corporation of that entity is also a director.
For the purposes of this definition:
(i) where a person is a beneficiary of a discretionary trust,
that person will be taken to own, and control, all the
assets of that trust;
(ii) DIRECTOR has the meaning given in the Corporations Law; and
(iii) a person has a CONTROLLING INTEREST in a corporation or
trust if:
(A) the person "controls" that corporation or trust, as
that term is defined in Accounting Standard AASB
1024: Consolidated Accounts: or
(B) the person has a relevant interest (as defined in
the Corporations Law) in more than 20% of the issued
or voting shares, units or other interests in the
corporation or trust (in number, voting power or
value), or would have that relevant interest if any
rights were exercised to subscribe for, or acquire
or convert into, shares, units or other interests
which are issued or unissued. The definition of
relevant interest applies as if units or other
interests were shares.
AUTHORISATION includes:
(a) any consent, authorisation, registration, filing, lodgement,
agreement, notarisation, certificate, permission, licence,
approval, authority or exemption from, by or with a
Governmental Agency; or
(b) in relation to anything which will be fully or partly
prohibited or restricted by law if a Governmental Agency
intervenes or acts in any way within a specified period
after lodgement, filing, registration or notification, the
expiry of that period without intervention or action.
AUTHORISED OFFICER means:
(a) in respect of the Borrower, Thermadyne Australia or each
Guarantor, any director or secretary, or any person from
time to time nominated as an Authorised Officer by it by a
notice to the Agent accompanied by certified copies of
signatures of all new persons so appointed; and
(b) in respect of the Agent or a Lender, any person whose title
or acting title includes the word MANAGER, DIRECTOR or
PRESIDENT or cognate expressions, or any secretary or
director.
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AVAILABILITY PERIOD means for:
(a) the Term Facility, the period commencing on the date of this
Agreement and expiring on 15 March 1996 or, if earlier, the
date on which all Term Commitments are fully utilised; or
(b) the Revolving Credit Facility, the period commencing on the
date of this Agreement and expiring on 31 December 2000 or,
if earlier, the date on which all Revolving Credit
Commitments are cancelled.
BANK XXXX RATE in relation to a Funding Period means:
(a) the rate determined by the Agent to be the average bid rate
(rounded up, if necessary, to the nearest two decimal
places) displayed at or about 10.30 am (Sydney time) on the
first day of that Funding Period on the Reuters screen BBSY
page for a term equivalent or approximately equivalent to
the Funding Period; or
(b) if:
(i) for any reason there is no rate displayed for a term
equivalent or approximately equivalent to the
Funding Period; or
(ii) the basis on which that rate is displayed is changed
and in the reasonable opinion of the Agent that rate
ceases to reflect the Lenders' cost of funding to
the same extent as at the date of this Agreement,
then the Bank Xxxx Rate will be the rate determined by the
Agent to be the average of the buying rates quoted to the
Agent by each of three Australian banks selected by the
Agent at or about that time on that date for bills of
exchange which are accepted by an Australian bank selected
by the Agent and which have a term equivalent or
approximately equivalent to the Funding Period. If there are
no buying rates the rate will be the rate determined by the
Agent to be its cost of funds.
Rates will be expressed as a yield percent per annum to maturity.
BENEFICIARY means the beneficiary of a Letter of Credit.
XXXX means a XXXX OF EXCHANGE as defined in the Bills of Exchange Xxx
0000.
XXXX FACILITY means the Facility provided under Clause 15.
BUSINESS means the business carried on by the Group comprising the
manufacture and sale of arc welding equipment, welding consumables,
gas welding and cutting equipment, high pressure gas control
products, medical products, consumer spray painting products and
industrial safety products.
BUSINESS AGREEMENTS means:
(a) the Trade Xxxx Licence Agreement and the Sale of Trade Marks
Agreement each dated 23 December 1993 and each between The
Commonwealth Industrial Gases Limited and the Borrower, and
any agreement at any time entered into by a member of the
Group which amends or replaces either of them;
(b) the Marketing Agreements dated 3 August 1989 relating to gas
and gear centres, medical equipment and cylinder valves
respectively, between the Borrower and The
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Commonwealth Industrial Gases Limited and any agreement at
any time entered into by a member of the Group with any
person which amends or replaces any of them;
(c) the deed dated 6 July 1989 between The Commonwealth
Industrial Gases Limited and the Borrower in relation to the
acquisition of the issued capital in Philippine Welding
Equipment Inc.; and
(d) the letter dated 6 July 1989 from The Commonwealth
Industrial Gases Limited to the Borrower in relation to the
acquisition of the rights of The Commonwealth Industrial
Gases Limited in P.T. Catu Tehnik Arga Uniggul.
BUSINESS DAY means a weekday on which banks are open in Sydney and
Melbourne.
BUSINESS PLAN means in relation to any calendar year or part of a
calendar year, the Borrower's cash flow forecast and budgets for that
year or part together with any reports and notes attached to or
intended to be read with any of them, containing:
(a) details of proposed capital expenditure;
(b) the amount of projected purchases and sales between the
Borrower or a Guarantor and an Associate of any of them; and
(c) other categories of information as the Agent may reasonably
require.
CASH FACILITY means the Facility provided under Clause 14.
CIG AGREEMENT means the agreement dated 3 August 1989 between The
Commonwealth Industrial Gases Limited and Toronto Dominion Australia
Limited (who, on the date of this Agreement, assigned to the Agent
all its rights in and to that agreement as agent of the Lenders).
COLLATERAL SECURITY means any Security Interest, Guarantee or other
document or agreement at any time created or entered into as security
for any Secured Moneys.
COMMITMENT in relation to a Lender means:
(a) in relation to the Term Facility, its Term Commitment; and
(b) in relation to the Revolving Credit Facility, its Revolving
Credit Commitment.
DEED OF RETIREMENT AND APPOINTMENT means the deed dated the date of
this Agreement under which BT Management Services Pty Ltd is
substituted for Toronto Dominion Australia Limited as Agent.
DESIGNATED EVENT means any of the events specified in Clause 21.
DISTRIBUTION means:
(a) any dividend or other distribution, whether of a capital or
revenue nature, to a person's shareholders or stockholders
as such;
(b) any application or distribution of any property or assets to
purchase, redeem or otherwise retire any shares or stock in
a person;
(c) any reduction (followed by any distribution) of a person's
capital;
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Page 5
(d) any payment or exchange of property or assets for property,
assets or services for a consideration which exceeds the
fair market value of the property, assets or services
acquired, or any gift;
(e) any transfer or settlement or setting aside of property or
assets to meet or effect any other Distribution mentioned
above.
DRAWDOWN DATE means the date on which any accommodation under this
Agreement is or is to be drawn.
DRAWDOWN NOTICE means a notice under Clause 5.
ENVIRONMENTAL LAW means a provision of a law or a law, which relates
to an aspect of the environment or health.
EXECUTIVE means:
(a) Xxxxxx Xxxxxx Klanjscek, of 0 Xxxxxxxxx Xxxxxx, Xxxxxxx
Xxxxx, Xxxxxxxx;
(b) Xxxxxxxx Xxxxxxx Ediriweera, of 0 Xxxxx Xxxxx, Xxxxxxxx
Xxxxx, Xxxxxxxx;
(c) Xxxxxx Xxxxxxx Xxxxxx, of 0 Xxxxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxx;
(d) Xxxxxx Xxxxxxx Xxxxxxxxx, of Xxx 0 Xxxxx Xxxxx, Xxxxxxxx,
Xxxxxxxx;
(e) Xxxxxx Xxxxx, of 0 Xxxxxxx Xxxxxx, XxXxxxxx, Xxxxxxxx;
(f) Xxxxxxx Xxxxx Xxxxxxx, of 00 Xxx Xxxx, Xxxxxxxx, Xxxxxxxx;
(g) Xxxx Xxxxxxx;
(h) Xxxxxx Xxxxxxx
(i) Xxxx Xxxxxx
FACILITY means the Term Facility, the LC Facility, the Xxxx Facility
or the Cash Facility.
FINANCIAL INDEBTEDNESS means any indebtedness, present or future,
actual or contingent in respect of moneys borrowed or raised or any
financial accommodation whatever. Without limitation, it includes
indebtedness under or in respect of a negotiable or other financial
instrument, Guarantee, interest, gold or currency exchange, hedge or
arrangement of any kind, redeemable share, share the subject of a
Guarantee, discounting arrangement, finance or capital Lease, hire
purchase, deferred purchase price (for more than 180 days) of an
asset or service or an obligation to deliver goods or other property
or provide services paid for in advance by a financier or in relation
to another other financing transaction.
FREEHOLD LAND means the whole of the land in the State of Victoria
comprised in Certificates of Title Volume 9585 Folio 782 and Volume
8315 Folio 650.
FUNDING PERIOD means in relation to a Segment of:
(a) the Term Facility or the Cash Facility, a period for the
fixing of interest rates for the Segment;
(b) the Xxxx Facility, the term of the Bills covered by the
Segment; and
(c) the LC Facility, the term of the Letter of Credit covered by
the Segment.
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In each case the period commences on the Drawdown Date of the Segment
or the last day of the preceding Funding Period of the Segment (as
appropriate) and has a duration selected under Clause 9.
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.
GROUP means Thermadyne Australia and its Subsidiaries.
GUARANTEE means any guarantee, indemnity, letter of credit, legally
binding letter of comfort or suretyship, or any other obligation or
irrevocable offer (whatever called and of whatever nature):
(a) to pay or to purchase;
(b) to provide funds (whether by the advance of money, the
purchase of or subscription for shares or other securities,
the purchase of assets, rights or services, or otherwise)
for the payment or discharge of;
(c) to indemnify against the consequences of default in the
payment of; or
(d) to be responsible otherwise for,
an obligation or indebtedness of another person, a dividend,
distribution, capital or premium on shares, stock or other interests,
or the insolvency or financial condition of another person.
GUARANTOR means Duxtech, Quetack or Quetala.
INDEMNIFIED PARTY means the Agent or a Lender.
INDEX NUMBER means:
(a) the quarterly Consumer Price Index Sydney All Groups number
published by the Australian Bureau of Statistics;
(b) if the quarterly Consumer Price Index Sydney All Groups
number published by the Australian Bureau of Statistics is
suspended or discontinued or the basis of calculating that
index is changed substantially, the New South Wales Male
Basic Wage applicable in the City of Sydney; or
(c) if the system or practice of the determination of the New
South Wales Male Basic Wage ceases, the index published at
the date of this Agreement and at the time of variation of
the Agent's Fee (as defined in Clause 24.4) by the
Australian Bureau of Statistics which reflects fluctuations
of the cost of living in Sydney, which shall be:
(i) as agreed by the Agent and the Borrower; or
(ii) if those parties are unable to agree within 14 days
after one of them proposes an index, as may be
determined, at the request of either of them, by a
suitably qualified person nominated by the President
of the Australian Institute of Valuers, whose
determination shall be final and binding on the
parties (and whose cost shall be born by the
Borrower). In making the determination, the person
shall act as an expert and not as an arbitrator.
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INTELLECTUAL PROPERTY means any intellectual or industrial property
including without limitation:
(a) a patent, trade xxxx or service xxxx, copyright, registered
design, trade secret, or confidential information; or
(b) a license or other right to use or to grant the use of any
of the foregoing or to be the registered proprietor or user
of any of the foregoing.
LC FACILITY means the Facility provided under Clause 13.
LEASE means:
(a) any lease, charter, hire purchase or hiring arrangement of
any property (including, without limitation, a right to use
Intellectual Property or a franchise);
(b) an agreement under which property is or may be used or
operated by a person other than the owner; or
(c) an agreement or arrangement under which property is or may
be managed or operated by a person other than the owner, and
the operator or manager or its Related Corporation or
Associate (whether in the same or another agreement or
arrangement) is required to make or assure minimum, fixed
and/or floating rate payments of a periodic nature.
LENDER means a bank or financial institution named in Schedule 1.
LENDER TRANSFER means the lender transfer agreement dated on or about
the date of this Agreement between Bankers Trust Australia Limited,
Toronto Dominion Australia Limited, the Borrower and others.
LETTER OF CREDIT means a standby letter of credit issued or to be
issued under this Agreement.
LIQUIDATION includes receivership, compromise, arrangement,
amalgamation, administration, reconstruction, winding up,
dissolution, assignment for the benefit of creditors, bankruptcy or
death.
MAJORITY LENDERS means Lenders whose Commitments are more than two
thirds of the total of the Commitments.
MARGIN means:
(a) in relation to the Term Facility: 1.50% per annum; and
(b) in relation to the Revolving Credit Facility: 0.75% per
annum.
MARKETABLE SECURITY has the meaning given in the Corporations Law,
but also includes:
(a) a document referred to in the exceptions to the definition
of "debenture" in the Corporations Law;
(b) a unit or other interest in a trust or partnership;
(c) a negotiable instrument; and
(d) a right or an option in respect of a Marketable Security,
whether issued or unissued, including, without limitation,
any of the above.
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MATERIAL ADVERSE EFFECT means, in the reasonable opinion of the
Agent, a material adverse effect on the ability of a Relevant Company
to perform its obligations under a Relevant Document, on the security
of the Indemnified Parties or on the financial condition or business
of a Relevant Company.
MATERIAL DOCUMENT means:
(a) a Transaction Document;
(b) the Trust Deed;
(c) the Business Agreements; or
(d) another document or agreement which is material to the
Business, the Mortgaged Property or the security of the
Indemnified Parties, or which is specified by the Agent as
being so.
MORTGAGE means the mortgage dated 3 August 1989 between Quetala and
the Agent (as the successor of Toronto Dominion Australia Limited) in
respect of the Freehold Land.
MORTGAGED PROPERTY means the property mortgaged or charged by a
Security Document or any Collateral Security.
NEW RIGHTS means all assets, rights, powers and proceeds of any
nature at any time attaching to, or arising out of a holding in, any
Marketable Securities included in the Mortgaged Property, including,
without limitation:
(a) all money, distributions and dividends;
(b) any Marketable Security, any right to take up Marketable
Securities or any allotment of further Marketable
Securities, and includes any certificate or other evidence
of title to the Marketable Securities or to anything
specified in this definition;
(c) any proceeds of, or of the disposal of, anything specified
in this definition; and
(d) any Marketable Security resulting from the conversion,
consolidation or sub-division of a Marketable Security, and
includes any certificate or other evidence of title to a
Marketable Security or to anything specified in this
definition.
PARENT FUNDING means Financial Indebtedness of the Borrower or a
Guarantor at any time to Thermadyne Holdings, Thermadyne Australia or
another of its holding companies (other than Duxtech).
POTENTIAL DESIGNATED EVENT means anything which with the giving of
notice or passage of time or both would become a Designated Event.
PRINCIPAL OUTSTANDING means the total principal amount of all
outstanding Segments.
QUARTERLY DATE means the last day of March, June, September and
December in each year.
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.
24
Page 9
RELEVANT COMPANY means:
(a) Thermadyne Australia, the Borrower, a Guarantor or any of
their respective Subsidiaries; or
(b) another person who gives or creates a Guarantee or Security
Interest which secures any Secured Moneys.
RELEVANT DOCUMENT means a Transaction Document or a Material
Document.
RELIQUEFICATION XXXX means a Xxxx drawn under Clause 12.
REPAYMENT DATE means in relation to:
(a) the Term Facility, 30 June 1996, 31 December 1996, 30 June
1997, 31 December 1997, 30 June 1998, 31 December 1998, 30
June 1999, 31 December 1999, 30 June 2000 and 31 December
2000; and
(b) the Revolving Credit Facility, 31 December 2000.
RESTRICTED TRANSACTION means any transaction entered into or to be
entered into by the Borrower or a Guarantor which does or might
result in the Borrower or a Guarantor being or becoming liable to
make a payment or to deliver any property or assets to, or in respect
of any liability of, an Associate of the Borrower or of a Guarantor
other than the allotment of ordinary shares in the Borrower or a
Guarantor for full consideration in cash.
REVOLVING CREDIT COMMITMENT in relation to a Lender means the amount
opposite its name in Column 2 of Part B of Schedule 1, as reduced or
canceled under this Agreement.
REVOLVING CREDIT FACILITY means the LC Facility, the Xxxx Facility
and the Cash Facility.
SAME DAY FUNDS means a bank cheque or other immediately available
funds.
SECURED FINANCING means accommodation provided to the Borrower by a
Beneficiary on the security of a Letter of Credit.
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 an Indemnified
Party (whether alone or with another person) for any reason whatever
under or in connection with a Transaction Document.
It includes, without limitation, 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.
Where the Borrower would have been liable but for its Liquidation, it
will be taken still to be liable.
SECURITY DOCUMENT means:
(a) the Unit Mortgage dated 3 August 1989 between Quetack and
the Agent (as the successor of Toronto Dominion Australia
Limited);
(b) the Charge dated 3 August 1989 between the Borrower and the
Agent (as the successor of Toronto Dominion Australia
Limited) in respect of Victorian property;
25
Page 10
(c) the Charge dated 3 August 1989 between the Borrower and the
Agent (as the successor of Toronto Dominion Australia
Limited) in respect of non-Victorian property;
(d) the Charge dated 3 August 1989 between Quetala and the Agent
(as the successor of Toronto Dominion Australia Limited);
(e) the Charge dated 3 August 1989 between Duxtech and the Agent
(as the successor of Toronto Dominion Australia Limited);
and
(f) the Mortgage.
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 favor of a
Governmental Agency by operation of statute unless there is default
in payment of moneys secured by that charge or lien.
SEGMENT means each portion of the accommodation made available under
a Facility which has the same Funding Period and Selection Date.
SELECTION DATE means the last day of a Funding Period or a day on
which any switch is or is to be made under this Agreement.
SELECTION NOTICE means a notice under Clause 8.
SHARE of a Lender, in respect of a Segment, means the proportion of
that Lender's participation in that Segment to the amount of the
Segment (such proportion to be determined under Clause 2).
SUBSIDIARY has the meaning given in the Corporations Law but so that:
(a) an entity will also be deemed to be a Subsidiary of a
company if it is controlled by that company (expressions
used in this paragraph have the meanings given for the
purposes of Parts 3.6 and 3.7 of the Corporations Law);
(b) a trust may be a Subsidiary, for the purposes of which a
unit or other beneficial interest will be regarded as a
share; and
(c) a corporation or trust may be a Subsidiary of a trust if it
would have been a Subsidiary if that trust were a
corporation.
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 COMMITMENT in relation to a Lender means the amount opposite its
name in Column 2 of Part A of Schedule 1, as reduced or cancelled
under this Agreement.
TERM FACILITY means the Facility provided under Clause 12.
THERMADYNE HOLDINGS means Thermadyne Holdings Corporation of 000
Xxxxx Xxxxxx Xxxx, Xx Xxxxx, XX 00000.
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Page 11
THERMADYNE SHAREHOLDERS LOAN means the loan made on or about the date
of this Agreement by Thermadyne Holdings to Thermadyne Australia (as
contemplated by clause 2(b)(xii) of the Lender Transfer).
TRANSACTION DOCUMENT means
(a) this Agreement;
(b) each Security Document and any Collateral Security;
(c) the CIG Agreement;
(d) the Deed of Retirement and Appointment; or
(e) the Lender Transfer,
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.
TRUST means the trust known as "Quetala Unit Trust" established under
the Trust Deed.
TRUST DEED means the deed entitled "Unit Trust Deed" between Quetala
and Quetack dated 27 July 1989.
UNDRAWN REVOLVING CREDIT COMMITMENT means a Lender's Revolving Credit
Commitment less the total principal amount of its Share of all
outstanding Segments of the Revolving Credit Facility.
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.
27
Page 12
(i) A reference to WRITING includes a facsimile transmission and
any means of reproducing words in a tangible and permanently
visible form.
(j) A reference to conduct includes, without limitation, an
omission, statement or undertaking, whether or not in
writing.
(k) A reference to discounting a Xxxx includes selling it as
agent for the Borrower.
(l) A Designated Event SUBSISTS until it has been waived in
writing by the Agent acting on the instructions of all
Lenders.
(m) A reference to an amount for which a person is contingently
liable includes, without limitation, 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.
(n) SUBSTANTIAL means not merely nominal.
(o) All references to dollars are to Australian dollars.
1.3 DETERMINATION, STATEMENT AND CERTIFICATE
Except where otherwise provided in this Agreement any determination,
statement or certificate by the Agent or any Lender or an Authorised
Officer of the Agent or any Lender provided for in this Agreement is
sufficient evidence of each thing determined, stated or certified
unless it is proven wrong.
1.4 DOCUMENT OR AGREEMENT
A reference to an AGREEMENT includes a Security Interest, Guarantee,
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 REPAYMENT AND PREPAYMENT
A reference to REPAYMENT or PREPAYMENT of:
(a) all or part of a Segment of the LC Facility is to payment to
the Agent of the whole or the relevant portion of the face
amount of the relevant Letter of Credit or the reduction,
expiry or cancellation of that Letter of Credit (if that
Letter of Credit has not been drawn on); and
(b) all or part of a Segment of the Xxxx Facility is to payment
to the Agent of the total face amount of the Bills
comprising that Segment or part.
1.6 PRINCIPAL
A reference to PRINCIPAL or PRINCIPAL AMOUNT, in relation to a
Segment of:
(a) the LC Facility, is to the face amount of the Letter of
Credit comprising that Segment; and
(b) the Xxxx Facility, is to the total face amount of the
outstanding Bills comprising that Segment.
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Page 13
1.7 OUTSTANDING
(a) A reference to an OUTSTANDING Letter of Credit is to a
Letter of Credit which has not expired (or which has expired
but a draft has been drawn or payment made under it) and for
which the Borrower has not provided cash cover under this
Agreement or reimbursement in full.
(b) A reference to an OUTSTANDING Xxxx is to a Xxxx which has
been accepted or discounted under this Agreement for which
the Borrower has not paid the face amount or provided cash
cover under this Agreement (whether or not that Xxxx has
matured or been presented for payment or been paid on
presentation by the relevant Lender).
1.8 LISTING REQUIREMENTS INCLUDED AS LAW
A listing rule or business rule of a stock exchange (as defined in
section 603 of the Corporations Law) will be regarded as a LAW.
1.9 TRUST
Unless the context requires otherwise, a reference to a transaction,
asset, act or liability of any nature of Quetala includes its
transactions, assets, acts or liabilities as trustee of the Trust.
Where Quetala incurs an obligation, it incurs that obligation both in
its own right and in its capacity as trustee, unless the obligation
relates only to an asset which it holds in its own right and not as
trustee. Without limitation, a reference to a RELATED CORPORATION of
Quetala includes a Related Corporation of the Trust.
1.10 CURRENT ACCOUNTING PRACTICE AND ACCOUNTING TERMS
A reference to CURRENT ACCOUNTING PRACTICE is to accounting
principles and practices applying by law or otherwise generally
accepted in Australia, consistently applied. Unless otherwise
defined, accounting terms should be interpreted in accordance with
current accounting practice.
1.11 DATE OF THIS AGREEMENT
A reference to the DATE OF THIS AGREEMENT is to the date of the sixth
amending agreement to this Agreement, namely 18 January 1996.
1.12 TRANSITIONAL
All Bills and Letters of Credit accepted or issued (as appropriate)
under this Agreement before the date of this Agreement and
outstanding on that date will be taken to have been accepted or
issued (as appropriate) under the Revolving Credit Facility.
1.13 RELEVANT AGREEMENT
This Agreement and each other Transaction Document is a RELEVANT
AGREEMENT within the meaning of each Security Document.
1.14 COMMONWEALTH INDUSTRIAL GASES LIMITED
The Commonwealth Industrial Gases Limited has changed its name to BOC
Gases Australia Limited.
2. COMMITMENTS
2.1 COMMITMENTS
Subject to this Agreement each Lender agrees with the Borrower to
make available its participation in each Segment of each Facility.
The total principal amount of a Lender's participation in all
outstanding Segments of:
29
Page 14
(a) the LC Facility, the Xxxx Facility and the Cash Facility
will not at any time exceed its Revolving Credit Commitment;
and
(b) the Term Facility will not at any time exceed its Term
Commitment.
2.2 ALLOCATION AMONG LENDERS
Each Lender shall participate in each Segment of a Facility ratably
according to its Commitment for that Facility.
2.3 OBLIGATIONS SEVERAL
The obligations and rights of each Lender under this Agreement are
several and:
(a) failure of a Lender to carry out its obligations does not
relieve any other Lender of its obligations;
(b) no Lender is responsible for the obligations of any other
Lender or the Agent; and
(c) subject to the Transaction Documents each Lender may
separately enforce its rights under any Transaction
Document.
3. CANCELLATION OF COMMITMENTS
3.1 DURING AVAILABILITY PERIOD - REVOLVING CREDIT COMMITMENTS
(a) On giving not less than five Business Days irrevocable
notice to the Agent the Borrower may cancel all or part of
the Undrawn Revolving Credit Commitments during the
Availability Period for the Revolving Credit Facility. A
partial cancellation must be in a minimum of $1,000,000 and
in a whole multiple of $1,000,000 unless the Agent agrees
otherwise.
(b) Any partial cancellation will be applied ratably against the
Undrawn Revolving Credit Commitment of each Lender. The
Agent shall promptly notify each Lender of any notice
received under this clause and the amount of that Lender's
Revolving Credit Commitment which is cancelled.
3.2 AT END OF AVAILABILITY PERIOD
All the Commitments for a Facility will be cancelled automatically at
the close of business (Sydney time) on the last day of the
Availability Period for that Facility.
3.3 REDUCTION ON REPAYMENT OR PREPAYMENT - TERM FACILITY
On any repayment under Clause 10.1 or any prepayment of all or part
of the Principal Outstanding of the Term Facility, the Term
Commitments will be reduced by an amount equal to the principal
amount so repaid or prepaid.
4. PURPOSE
The Borrower shall use the net proceeds of all accommodation provided
under this Agreement and of any Secured Financing:
(a) in the case of accommodation provided under the Term
Facility, in accordance with Clause 12.1; or
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Page 15
(b) in any other case, for its working capital or trade finance
requirements from time to time, and for no other purpose.
5. DRAWDOWN NOTICES
5.1 WHEN NOTICE TO BE GIVEN
Whenever the Borrower wishes to make a drawing under the Revolving
Credit Facility it shall give to the Agent an irrevocable Drawdown
Notice substantially in the form of Annexure A. That Drawdown Notice
must be received by the Agent by 11 am (Sydney time) five Business
Days before the proposed Drawdown Date (which must be a Business
Day).
5.2 NOTICE OF FACILITY
Each Drawdown Notice will specify whether a drawing is to be made
under the LC Facility, the Xxxx Facility or the Cash Facility.
5.3 NOTIFICATION OF LENDERS
The Agent shall give prompt notice to each Lender of the contents of
each Drawdown Notice and the amount of each Lender's Share of each
Segment of the relevant Facility requested.
6. SWITCHING, SPLITTING AND COMBINATION OF SEGMENTS
6.1 BETWEEN FACILITIES
Subject to this Agreement, pursuant to a Selection Notice, the
Borrower may switch all or part of any Segment:
(a) once only, in accordance with Clause 12.1, from the Xxxx
Facility to the Term Facility; or
(b) from the LC Facility, the Xxxx Facility or the Cash Facility
to another such Revolving Credit Facility.
6.2 LIMITATIONS ON SWITCHING
Subject to Clause 12.1, the Borrower may only switch under this
clause:
(a) all or part of any Segment of the Xxxx Facility or the Cash
Facility on the last day of a Funding Period for that
Segment;
(b) all or part of any Segment of the LC Facility on
cancellation of all or part of the relevant Letter of Credit
to the satisfaction of the Agent;
(c) where part only of a Segment is switched into another
Facility, if each of the resulting Segments will comply with
Clause 7.1; and
(d) if on the Selection Date it repays the amount of the Segment
which is to be switched.
6.3 SPLITTING AND COMBINATION
Subject to Clause 7, the Borrower may split or combine Segments.
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7. AMOUNT AND NUMBER OF SEGMENTS
7.1 PRINCIPAL AMOUNT OF SEGMENTS
The Borrower shall ensure that the principal amount of each Segment
is a minimum of A$1,000,000 and a whole multiple of A$500,000.
7.2 NUMBER OF SEGMENTS
The Borrower shall ensure that there are no more than 10 Segments
outstanding at any time.
8. SELECTION NOTICE
8.1 WHEN NOTICE TO BE GIVEN
By 11 am (Sydney time) three Business Days before the last day of
each Funding Period the Borrower shall give to the Agent an
irrevocable Selection Notice unless the Borrower is obliged to repay
or prepay the relevant Segment on that last day in accordance with
this Agreement. The Selection Notice must be substantially in the
form of Annexure B.
8.2 FAILURE TO GIVE SELECTION NOTICE
If the Borrower fails to give a Selection Notice in accordance with
Clause 8.1 it will be taken to have served a Selection Notice
electing to continue the Segment under the same Facility with the
same Funding Period, and making without qualification the statement
set out in paragraph (4)(a) and (b) of Annexure B.
8.3 NOTIFICATION OF LENDERS
The Agent shall give prompt notice to each Lender of the contents of
each Selection Notice and the amount of each Lender's Share of each
Segment to be continued.
9. SELECTION OF FUNDING PERIODS
(a) Subject to this Clause, the Borrower may only select the
following Funding Periods for the following Facilities:
(i) Term Facility: one, two, three, four or six
months;
(ii) Xxxx Facility or Cash Facility: one, two, three,
four or six months; and
(iii) LC Facility: up to 12 months or any longer period
agreed by all Lenders.
(b) The Borrower may select any other period agreed by the
Agent.
(c) Should a Funding Period end on a day which is not a Business
Day, that Funding Period will be extended to the next
Business Day in the same calendar month or, if none, the
preceding Business Day.
(d) If a Funding Period of a number of months commences on a
date in a month and there is no corresponding date in the
month in which it is to end, it will end on the last
Business Day of the latter month.
(e) No Funding Period for a Segment of a Facility may extend
beyond the final Repayment Date for that Facility. The
Borrower shall select Funding Periods for Segments of the
Term Facility so as to ensure that each Repayment Date for
that Facility coincides with the last day of Funding Periods
of outstanding Segments of
32
Page 17
the Term Facility which have a principal amount not less
than the principal amount to be repaid on that day.
(f) If the Borrower fails to select Funding Periods complying
with this clause the Agent may vary any Drawdown Notice or
Selection Notice to ensure compliance.
10. REPAYMENT
10.1 REPAYMENT - TERM FACILITY
(a) The Borrower shall repay the Principal Outstanding under the
Term Facility by installments on the Repayment Dates for
that Facility.
(b) Each instalment will be of a principal amount in accordance
with the following:
-----------------------------------------------------------------
REPAYMENT DATE AMORTISATION TERM FACILITY
(A$MILLION) PRINCIPAL
OUTSTANDING
(A$MILLION)
-----------------------------------------------------------------
-----------------------------------------------------------------
30 June 1996 0 .5 14.5
-----------------------------------------------------------------
31 December 1996 0 .5 14.0
-----------------------------------------------------------------
30 June 1997 1 .5 12.5
-----------------------------------------------------------------
31 December 1997 1 .5 11.0
-----------------------------------------------------------------
30 June 1998 1 .5 9 .5
-----------------------------------------------------------------
31 December 1998 1 .5 8 .0
-----------------------------------------------------------------
30 June 1999 2 .0 6 .0
-----------------------------------------------------------------
31 December 1999 2 .0 4 .0
-----------------------------------------------------------------
30 June 2000 2 .0 2 .0
-----------------------------------------------------------------
31 December 2000 2 .0 0 .0
-----------------------------------------------------------------
(c) The final instalment will be the Principal Outstanding under
the Term Facility as at the final Repayment Date.
10.2 REPAYMENT - REVOLVING CREDIT FACILITY
The Borrower shall repay the Principal Outstanding under the
Revolving Credit Facility on the Repayment Date for that Facility.
10.3 ALLOCATION AMONG LENDERS
Repayments under each Facility will be applied ratably among the
Lenders according to their participations in the Principal
Outstanding for that Facility.
10.4 ALLOCATION AMONG SEGMENTS
All repayments will be applied in reduction of those Segments which
the Borrower may specify after consultation with the Agent. To the
extent practicable repayments will only be applied against Segments
which have Selection Dates falling on the relevant Repayment Date.
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Page 18
11. PREPAYMENTS
11.1 VOLUNTARY PREPAYMENTS
(a) Subject to this clause, if it gives at least 5 Business
Days' prior notice to the Agent (who shall promptly notify
the Lenders) the Borrower may prepay all or part of the
Principal Outstanding under the Term Facility or the
Revolving Credit Facility. That notice is irrevocable. The
Borrower shall prepay in accordance with it.
(b) Unless the Agent agrees otherwise, prepayment of part only
of a Segment may only be made in a principal amount of a
minimum of $1,000,000 and a whole multiple of $1,000,000.
11.2 PREPAYMENTS OF TERM FACILITY
(a) The Borrower may not prepay under Clause 11.1 all or part of
the Principal Outstanding of the Term Facility unless at the
same time it cancels an amount of the Revolving Credit
Commitments equal to the same proportion of the total
Revolving Credit Commitments as the Principal Outstanding of
the Term Facility to be prepaid bears to the total Principal
Outstanding of the Term Facility.
(b) Cancellations affecting utilized Revolving Credit
Commitments may only be made on the last day of the Funding
Period of Segments of the Revolving Credit Facility of a
total principal amount at least equal to the utilized amount
to be canceled. The Borrower shall reduce the Principal
Outstanding of the Revolving Credit Facility to the extent
necessary to ensure that it does not exceed at any time the
total Revolving Credit Commitments.
11.3 VOLUNTARY PREPAYMENT ON EXPIRY OF FUNDING PERIOD
Prepayments under Clause 11.1 may only be made on the last day of the
Funding Period of the relevant Segment.
11.4 INTEREST
The Borrower shall pay any interest accrued on any amount prepaid
under this Agreement at the time of the prepayment.
11.5 LIMITATION ON PREPAYMENTS
The Borrower may not prepay all or part of the Principal Outstanding
except in accordance with this Agreement.
11.6 APPLICATION AGAINST REPAYMENT INSTALLMENTS
Prepayments of the Principal Outstanding under the Term Facility will
be applied against repayment installments under the Term Facility in
inverse order of maturity.
11.7 APPORTIONMENT
Prepayments under Clause 11.1 will be applied ratably in reduction of
the respective participations of all the Lenders in the Principal
Outstanding under the applicable Facility.
11.8 NO REDRAWING - TERM FACILITY
Prepayments or repayments under the Term Facility will not be
available for redrawing.
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Page 19
11.9 REDRAWING - REVOLVING CREDIT FACILITY
Subject to this Agreement, prepayments or repayments under the
Revolving Credit Facility will be available for redrawing.
12. TERM FACILITY
12.1 SWITCH FROM XXXX FACILITY
(a) The Borrower will be taken to have served a Selection Notice
electing to switch, on the date of this Agreement, Segments
(or parts of Segments) of the Xxxx Facility of a total
principal amount equal to the sum of the Term Commitments,
into a Segment of the Term Facility with a Funding Period of
one month commencing on the date of this Agreement.
(b) Despite Clause 15.8, the Borrower will not be obliged to
repay the Segments (or parts of Segments) of the Xxxx
Facility which are to be switched under paragraph (a) but
from the date of this Agreement an amount equal to the total
face amount of the Bills comprising those Segments or parts
will be taken to be an outstanding Segment of the Term
Facility.
12.2 INTEREST
Interest will accrue from day to day on the outstanding principal
amount of each Segment of the Term Facility at the rate calculated by
the Agent to be the aggregate of the applicable Margin and the Bank
Xxxx Rate for the relevant Funding Period. The Borrower shall pay
accrued interest in arrears on the last day of each Funding Period
and on repayment or prepayment of all or the relevant part of the
Segment.
12.3 PREPARATION OF RELIQUEFICATION BILLS
The Borrower irrevocably and for valuable consideration authorizes
each Lender (at the option of the Lender) from time to time:
(a) to prepare Reliquefication Bills in relation to a Segment of
the Term Facility; and
(b) by its Authorized Officer, to sign them as drawer, endorser
and/or acceptor in the name of and on behalf of the
Borrower.
12.4 REQUIREMENTS OF RELIQUEFICATION BILLS
(a) The total face amount of Reliquefication Bills prepared by
any Lender and outstanding in relation to any Segment must
not at any time exceed:
(i) that Lender's Share of the principal amount of
that Segment; plus
(ii) the total interest which has accrued or will
accrue on that Share during the relevant Funding
Period.
(b) Reliquefication Bills must mature on or before the last day
of the relevant Funding Period.
12.5 DEALING WITH RELIQUEFICATION BILLS
Each Lender may realize or deal with any Reliquefication Xxxx
prepared by it as it thinks fit.
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12.6 INDEMNITY
(a) Each Lender shall indemnify the Borrower on demand against
all liabilities, costs and expenses incurred by the Borrower
by reason of it being a party to a Reliquefication Xxxx
prepared by that Lender.
(b) Paragraph (a) does not affect any obligation of the Borrower
under this Agreement. In particular the obligation of the
Borrower to pay any principal, interest or other moneys
under this Agreement is absolute and unconditional. It is
not in any way affected by any liability of a Lender,
contingent or otherwise, under this indemnity.
(c) If a Reliquefication Xxxx is presented to the Borrower and
the Borrower discharges it by payment, the amount of that
payment will be deemed to have been applied against the
moneys outstanding under this Agreement to that Lender.
12.7 STAMP DUTY ON RELIQUEFICATION BILLS
Each Lender shall pay any stamp duty on Reliquefication Bills
requested by it.
13. LC FACILITY
13.1 ISSUE OF LETTERS OF CREDIT
Subject to this Agreement, whenever the Borrower gives a Drawdown
Notice or Selection Notice requesting a Segment of the LC Facility:
(a) the Agent shall promptly notify the Lenders;
(b) by 11.00 am (Sydney time) on the second Business Day before
each Accommodation Date each Lender shall authorize the
Agent to execute and issue on its behalf the Letter of
Credit requested in the relevant Drawdown Notice or
Selection Notice;
(c) that authorization must be substantially in the form of
Annexure C and must be given by tested telex or other means
acceptable to the Agent; and
(d) if it receives those authorizations, on that Accommodation
Date the Agent shall issue the Letter of Credit on behalf of
the Lenders in their respective Shares.
13.2 FORM AND BENEFICIARY
(a) Each Letter of Credit must be substantially in the form of
Annexure D or in any other form agreed by the Agent, the
Borrower and the Lenders.
(b) The Beneficiary must be Commonwealth Bank of Australia or
another person agreed by the Agent and the Borrower.
13.3 EXPIRY DATE
Each Letter of Credit must expire on the last day of the Funding
Period of the relevant Segment specified in the relevant Drawdown
Notice or Selection Notice.
13.4 CAP AND AMOUNT
(a) The aggregate principal amount of all accommodation
outstanding under the LC Facility must not at any time
exceed A$10,000,000.
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(b) The face amount of any Letter of Credit must be a minimum of
A$2,000,000, or any other amount agreed by the Agent, and
must not cause a breach of the limit in Clause 2.1.
13.5 SECURED FINANCING
(a) The Borrower shall ensure that it is a term of any Secured
Financing that at any time after a declaration by the Agent
under Clause 21.2(a) all moneys owing under that Secured
Financing (whether actually or contingently) will be
immediately due and payable upon written request by the
Agent (acting on the instructions of the Majority Lenders)
to the Beneficiary.
(b) The Secured Financing must be on terms and conditions
acceptable to the Agent.
13.6 LENDER AS BENEFICIARY
A Lender may be a Beneficiary of a Letter of Credit. In that case,
when demand is made by it under the Letter of Credit, it will be
deemed to have made a payment equal to its Share of the amount of the
demand.
13.7 AGENT'S AUTHORITY
Each Lender irrevocably authorizes the Agent to issue Letters of
Credit on its behalf and in its name in accordance with this Clause.
The Agent may rely on any tested telex or other communication that it
believes genuine.
13.8 NOTIFICATION OF ISSUE
The Agent shall promptly inform the Lenders of the issue of any
Letter of Credit.
13.9 DRAWINGS PROCEDURE
(a) The Agent shall give each Lender prompt notice of any claim
under any Letter of Credit. That notice will include or have
attached the form of the claim and its annexures and specify
the amount claimed from that Lender.
(b) If the claim complies with the Letter of Credit each Lender
shall pay the Agent the amount payable by that Lender under
the Letter of Credit as soon as practicable and no later
than the next Business Day.
13.10 RECOVERY BY AGENT
(a) Unless it has received notice to contrary, the Agent may
assume that each Lender will pay the full amount payable by
it under Clause 13.9(b). In reliance on that assumption it
may pay that amount to the Beneficiary under the Letter of
Credit. It is not bound to do so.
(b) If that amount is paid by the Agent but is not paid by the
Lender:
(i) the Agent may recover it from the Lender on demand
with interest, which will accrue at the rate
determined by the Agent, in accordance with its
usual practice, as the rate for advances of
similar duration and amount to banks and financial
institutions of the standing of the Lender; and
(ii) so long as and to the extent that it is not paid
by the Lender the Agent may recover it from the
Borrower under Clause 13.12 as if it were a
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Lender and the relevant amount had been paid by it
as a Lender under the Letter of Credit.
The Agent may make simultaneous claims under sub-paragraphs
(i) and (ii) but, with the exception of accrued interest,
amounts paid under one will commensurately reduce the amount
payable under the other.
13.11 PAYMENT OF SECURED FINANCINGS BY BORROWER
The Borrower shall pay all principal, interest and other amounts when
due and payable under or in relation to each Secured Financing.
13.12 INDEMNITY
(a) (PAYMENT) On demand the Borrower shall pay to the Agent in
the currency of the relevant Letter of Credit for the
account of each Lender all amounts paid or required to be
paid by the Lender under any Letter of Credit together with
interest from the date of payment under the Letter of Credit
calculated as specified in Clause 23.
(b) (GENERAL INDEMNITY) On demand the Borrower shall indemnify
each Lender and the Agent against any loss, cost, charge,
liability or expense sustained or incurred in relation to
any Letter of Credit or as a direct or indirect consequence
of any claim made or purported to be made under any Letter
of Credit, or anything done by any person who is, or claims
to be, entitled to the benefit of a Letter of Credit.
13.13 OBLIGATIONS UNCONDITIONAL
The Borrower's obligations under Clause 13.12 are absolute and
unconditional. They will not be subject to any reduction, termination
or other impairment by any set-off, deduction, abatement,
counterclaim, agreement, defence, suspension, deferment or otherwise
and the Borrower will not be released, relieved or discharged from
any obligations under this Agreement, nor will such obligations be
prejudiced or affected, for any reason including without limitation:
(a) any falsity, inaccuracy, insufficiency or forgery of or in
any demand, certificate or declaration or other document
which on its face purports to be signed or authorised
pursuant to a Letter of Credit;
(b) any failure by any Lender or the Agent to enquire whether
any cable or telex has been inaccurately transmitted or
received from any cause or has been sent by an unauthorised
person;
(c) the impossibility or illegality of performance of or any
invalidity of or affecting any Transaction Document, any
Secured Financing or any Letter of Credit or any other
agreement;
(d) any act of any Governmental Agency or arbitrator, including
any law, judgment, decree or order at any time in effect in
any jurisdiction affecting any of the terms of any
Transaction Document, any Secured Financing or any other
document delivered pursuant to any Transaction Document;
(e) any failure to obtain any Authorisation necessary or
appropriate in connection with this Agreement;
(f) any time, waiver or other indulgence granted by any Lender
or the Agent; or
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(g) any other cause or circumstance, foreseen or unforeseen,
whether similar or dissimilar to any of the above affecting
any Transaction Document, any Secured Financing or any
transaction under any Transaction Document,
and neither the Agent nor the Lenders are liable or under any duty to
enquire in respect of any of the matters mentioned in the above
paragraphs.
13.14 INDEMNITY FROM LENDERS TO AGENT
Each Lender shall indemnify the Agent (in that capacity only) for any
loss, cost, charge, liability or expense the Agent may sustain or
incur in relation to or as a direct or indirect consequence of the
issue of a Letter of Credit on that Lender's behalf.
14. CASH FACILITY
14.1 ADVANCE OF SEGMENT
(a) Subject to this Agreement, whenever the Borrower requests a Segment
of the Cash Facility, each Lender shall make available its Share of
that Segment to the Agent in immediately available funds by 11.00 am
(Sydney time) on the relevant Accommodation Date for the account of
the Borrower, except to the extent the Segment continues a previous
Segment of the Cash Facility.
(b) On receipt the Agent will pay it to the relevant account specified in
the Drawdown Notice or Selection Notice.
14.2 INTEREST
Interest will accrue from day to day on the outstanding principal
amount of each Segment of the Cash Facility at the rate calculated by
the Agent to be the aggregate of the applicable Margin and the Bank
Xxxx Rate for the Funding Period of that Segment. The Borrower shall
pay accrued interest in arrears on the last day of each Funding
Period and on repayment or prepayment of all or the relevant part of
the Segment.
15. XXXX FACILITY
15.1 PREPARATION OF BILLS
Whenever the Borrower requests a Segment of the Xxxx Facility, then
the Agent shall:
(a) prepare the Bills to be accepted and discounted in relation
to that Segment; and
(b) by 3 pm (Sydney time) on the second Business Day before the
relevant Accommodation Date, deliver to each Lender the
Bills drawn on that Lender.
15.2 REQUIREMENTS OF BILLS
Bills prepared under this Clause must comply with the following.
(a) The aggregate face amount of the Bills comprised in a
Segment must be equal to the principal amount requested in
the relevant Drawdown Notice or Selection Notice.
(b) Each Xxxx must:
(i) to the extent practicable, have a face amount of
A$500,000, or any other amount specified by the
Agent;
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(ii) be expressed to be drawn by the Borrower on a
Lender so that the aggregate face amount of the
Bills drawn on each Lender equals its Share of the
principal amount of the relevant Segment;
(iii) be payable at the relevant Lender's office
specified in this Agreement or notified by the
Lender from time to time to the Borrower and the
Agent;
(iv) either:
(A) have the Borrower named as payee and be
endorsed in blank by or on behalf of the
Borrower; or
(B) have the name of the payee left blank; and
(v) mature on the last day of the relevant Funding
Period requested in the relevant Drawdown Notice
or Selection Notice.
15.3 AUTHORITY TO COMPLETE BILLS
The Borrower irrevocably and for value authorises:
(a) each Lender to complete and deliver Bills under this Clause;
and
(b) the Agent to prepare Bills complying with this Clause, and
(by its Authorised Officer) to sign them as drawer and, if
applicable, endorse them, in the Borrower's name and on the
Borrower's behalf.
15.4 RESTRICTION ON USE OF BILLS BY AGENT AND LENDERS
Neither the Agent nor any Lender shall use or deal with any Xxxx
delivered to it or prepared by it except in accordance with this
Clause.
15.5 NOTIFICATION OF BANK XXXX RATE
(a) By 11 am (Sydney time) on each Accommodation Date the Agent
shall notify the Borrower and each Lender of the Bank Xxxx
Rate for each Segment of the Xxxx Facility to be drawn or
continued on that date.
(b) Notification under this Clause may be by telephone.
15.6 ACCEPTANCE AND DISCOUNT
Subject to this Agreement, on each Accommodation Date relating to a
Segment of the Xxxx Facility each Lender shall:
(a) accept the Bills drawn on it under this Clause;
(b) if necessary, insert as payee itself or any other person who
is to purchase those Bills; and
(c) discount or procure the discount of those Bills and pay to
the Agent in immediately available funds by 12 noon (Sydney
time) an amount equal to the aggregate face amount of those
Bills less the aggregate of:
(i) a discount amount in respect of those Bills which
would result in a yield to maturity calculated at
the Bank Xxxx Rate for the relevant Funding
Period;
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(ii) an acceptance fee equal to the applicable Margin,
which will be calculated on a daily basis on the
aggregate face amount of those Bills from and
including the date on which they were accepted to
their maturity date; and
(iii) any applicable stamp duty or other Tax payable by
the Agent or that Lender in respect of those Bills
or in respect of any payment, receipt or crediting
of an account contemplated by this Clause
(including, without limitation, financial
institutions duty).
Upon receipt the Agent shall pay the proceeds to the account
nominated by the Borrower in the relevant Drawdown Notice or
Selection Notice.
15.7 INDEMNITY
The Borrower shall indemnify each Lender on demand against all
liabilities of that Lender as acceptor of Bills. This indemnity
extends to any liability of Bankers Trust Australia Limited under
clause 5 of the Lender Transfer.
15.8 CASH COVER
As between each Lender and the Borrower, the Borrower will be
primarily liable in respect of Bills accepted by that Lender.
Accordingly:
(a) the liability of the Borrower with respect to any such Xxxx
will not be discharged by reason of that Lender becoming the
holder of that Xxxx before, on or after its maturity; and
(b) by 12 noon (Sydney time) on the maturity date of the Xxxx
the Borrower shall pay to the Agent for the account of that
Lender an amount equal to the face amount of the Xxxx.
15.9 NETTING OFF
Where new Bills are to be drawn and accepted on the maturity date of
old Bills, only the net amount as between:
(a) the amount payable on that date by the Borrower under Clause
15.8 for the account of a Lender; and
(b) the amount which that Lender is obliged on that date to make
available for the account of the Borrower under Clause 15.6,
need be paid or made available.
15.10 VARIATION OF PROCEDURES
After consultation with the Borrower and the Lenders, the Agent by
notice to them may vary any of the times by which anything is to be
done under this Clause for the purpose of ensuring the effective
operation of the procedures contemplated by this Clause.
15.11 OVERDRAFT IF NO ROLLOVER
If:
(a) as a result of a condition precedent in Clause 18 not being
satisfied or waived, a Lender does not provide its Share of
a new Segment of the Xxxx Facility requested by the Borrower
on the maturity of Bills accepted by that Lender; and
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(b) the Agent has not exercised its powers under Clause 21.2(a),
the Borrower will not be obliged to provide cash cover under Clause
15.8 for the maturing Bills to the extent of the amount of cash cover
that the Lender determines would have been provided out of the
proceeds of the Share of the new Segment, had that condition
precedent been satisfied. That amount will be deemed to have been
provided by the Lender as a loan:
(c) which is repayable on the earlier of:
(i) the Principal Outstanding being required to be
repaid under this Agreement; and
(ii) the relevant condition precedent being satisfied
and the Borrower being able to utilize the Xxxx
Facility again; and
(d) on which the Borrower shall pay interest calendar quarterly
in arrears. The interest will accrue from day to day at a
rate equal to the applicable Margin plus:
(i) if the Lender has an overdraft rate for overdrafts
to commercial customers, that rate from time to
time; or
(ii) otherwise, the Lender's 11 am (Sydney time) cash
rate from time to time.
16. PAYMENTS
16.1 MANNER
The Borrower and each Guarantor shall make all payments under any
Transaction Document in Same Day Funds by 11 am (local time) on the
due date to the address for service of notices of the Agent, or to
the account specified by the Agent from time to time, without set-off
or counterclaim and without deduction, whether on account of Taxes or
otherwise, except any compulsory deduction for Taxation.
16.2 PAYMENT TO BE MADE ON BUSINESS DAY
Whenever any payment becomes due on a day which is not a Business
Day, the due date will be the next Business Day in the same calendar
month or, if none, the preceding Business Day.
16.3 DISTRIBUTION BY AGENT
Unless any Transaction Document expressly provides otherwise, the
Agent shall promptly distribute amounts received under any
Transaction Document for the account of the Lenders ratably among
them and in like funds as they are received by the Agent. To make any
distribution the Agent may buy and sell currencies in accordance with
its normal procedures.
16.4 APPROPRIATION WHERE INSUFFICIENT MONEYS AVAILABLE
Where amounts required to be distributed by the Agent under Clause
16.3 on any day are not sufficient to make all the payments required,
those amounts will be appropriated between principal, interest and
other amounts then payable as the Agent determines. This
appropriation will override any appropriation made by the Borrower.
Without limitation the Agent may appropriate amounts first in payment
of amounts payable to it by way of indemnity or reimbursement.
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16.5 UNANTICIPATED DEFAULT
(a) (ASSUMPTION AS TO PAYMENT) The Agent may assume that a party
(the PAYER) due to make a payment for the account of another
party (the RECIPIENT) makes that payment when due unless the
Payer notifies the Agent at least one Business Day before
the due date that the Payer will not be making the payment.
(b) (RELIANCE ON ASSUMPTION) In reliance on that assumption, the
Agent may make available to the Recipient on the due date an
amount equal to the assumed payment.
(c) (RECOUPMENT) If the Payer does not in fact make the assumed
payment, the Recipient shall repay the Agent the amount on
demand. The Payer will still remain liable to make the
assumed payment, but until the Recipient does repay the
amount, the Payer's liability will be to the Agent in the
Agent's own right.
(d) (INTEREST) If the Payer is the Borrower or a Guarantor any
interest on the amount of the assumed payment accruing
before recovery will belong to the Agent. If the Payer is a
Lender that Lender shall pay interest on the amount of the
assumed payment at the rate determined by the Agent, in line
with its usual practice, for advances of similar duration to
financial institutions of the standing of the Lender.
16.6 ROUNDING
In making any allocation or appropriation under any Transaction
Document the Agent may round amounts to the nearest dollar.
17. CHANGES IN LAW
17.1 INCREASED COSTS
Whenever any Indemnified Party determines that:
(a) the effective cost to the Indemnified Party of making,
funding or maintaining any Segment or its Commitment is
increased in any way;
(b) any amount paid or payable to the Indemnified Party or
received or receivable by the Indemnified Party, or the
effective return to the Indemnified Party or any of its
holding companies, under or in respect of any Transaction
Document is reduced in any way;
(c) the return of the Indemnified Party or any of its holding
companies on the capital which is or becomes directly or
indirectly allocated by the Indemnified Party or the holding
company to any Segment or its Commitment is reduced in any
way; or
(d) insofar as any relevant law, official directive or request
relates to or affects its Commitment, any Segment or the
Transaction Documents, the overall return on capital of the
Indemnified Party or any of its holding companies is reduced
in any way,
as a result of any change in, any making of, or any change in the
interpretation or application by any Governmental Agency of any law,
official directive or request, then:
(e) that Indemnified Party shall promptly notify the Borrower;
and
(f) on demand from time to time the Borrower shall pay for the
account of the Indemnified Party the amount certified by an
Authorised Officer of the Indemnified
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Party to be necessary to compensate the Indemnified Party or
the relevant holding company (as the case may be) for the
increased cost or the reduction.
Without limiting the above in any way, this clause applies:
(g) to any law, official directive or request with respect to
Taxation (except a Tax on overall net income) or reserve,
liquidity, capital adequacy, special deposit or similar
requirements;
(h) to official directives or requests which do not have the
force of law where it is the practice of responsible bankers
or financial institutions in the country concerned to comply
with them; and
(i) where the increased cost or the reduction arises because the
relevant Indemnified Party or any of its holding companies
is restricted in its capacity to enter other transactions,
is required to make a payment, or forgoes or earns reduced
interest or other return on any capital or on any sum
calculated by reference in any way to the amount of any
Segment, its Commitment or to any other amount paid or
payable or received or receivable under any Transaction
Document or allocates capital to any such sum.
17.2 MINIMISATION
(a) (NO DEFENCE) It will not be a defence that any cost,
reduction or payment referred to in this clause could have
been avoided, except in the case of the wilful misconduct or
gross negligence of the relevant Indemnified Party or
holding company.
(b) (NEGOTIATION) At the request of the Borrower the Agent and
any relevant Lender shall negotiate in good faith with the
Borrower with a view to finding a way of minimising any
cost, reduction or payment or the effect of any unlawfulness
or impracticability referred to in Clause 17.5.
17.3 SURVIVAL OF OBLIGATIONS
This clause survives the repayment of any relevant Segment and the
termination of this Agreement.
17.4 PREPAYMENT ON INCREASED COSTS
(a) Within 60 days after the Borrower receives a notice under
Clause 17.1(e) the Borrower may notify the relevant Lender
through the Agent that it wishes to prepay the Lender's
participation in any Segment affected.
(b) The notification will be irrevocable. The Borrower shall
prepay in accordance with it on the last day of the relevant
Funding Period or Periods current when the notification is
given.
17.5 ILLEGALITY
If the making of, or a change in the interpretation or application by
any Governmental Agency of, any law or treaty makes it unlawful or
impracticable for any Lender to make, fund or maintain the advances
or accommodation required under this Agreement:
(a) that Lender may terminate its Commitment by notice to the
Borrower;
(b) if required by the law or treaty, or if necessary to prevent
or remedy a breach of the law or treaty, the Borrower shall
prepay that Lender's participation in the Principal
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Outstanding, together with all interest, fees and other
amounts payable to that Lender under this Agreement; and
(c) the Borrower shall make the prepayment immediately or, if in
the opinion of the relevant Lender delay in prepayment is
permitted by the law or treaty, or will not cause a breach
of the law or treaty, on the latest permitted day.
18. CONDITIONS PRECEDENT TO EACH SEGMENT
The obligations of each Lender to make available each Segment are
subject to the conditions precedent that:
(a) (REPRESENTATIONS TRUE) the representations and warranties by
Thermadyne Australia, the Borrower and each Guarantor in the
Transaction Documents are true as at the date of the
relevant Drawdown Notice or Selection Notice and the
relevant Accommodation Date as though they had been made at
that date in respect of the facts and circumstances then
subsisting;
(b) (NO DEFAULT) no Designated Event or Potential Designated
Event is subsisting at the date of the relevant Drawdown
Notice or Selection Notice and the relevant Accommodation
Date or will result from the provision of the Segment; and
(c) (AUTHORISATION) all necessary Authorisations for the
provision of that Segment have been obtained.
19. REPRESENTATIONS AND WARRANTIES
19.1 REPRESENTATIONS AND WARRANTIES
Each of the Borrower, each Guarantor and Thermadyne Australia makes
the following representations and warranties.
(a) (STATUS) It is a corporation validly existing under the laws
of the place of its incorporation specified in this
Agreement.
(b) (POWER) It has the power to enter into and perform its
obligations under the Transaction Documents to which it is
expressed to be a party, to carry out the transactions
contemplated by those documents 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 the Transaction Documents to which it is expressed to be
a party, and to carry out the transactions contemplated by
those documents.
(d) (DOCUMENTS BINDING) Each Transaction Document to which it is
expressed to be a party is its valid and binding obligation
enforceable in accordance with its terms, subject to any
necessary stamping and registration. Each Security Document
any Collateral Security is effective security over the
Mortgaged Property purported and to be mortgaged or charged
by it with the priority stated. Each Material Document is
valid and binding on the parties to it and enforceable
against each of them in accordance with its terms.
(e) (TRANSACTIONS PERMITTED) The execution and performance by it
of the Transaction Documents to which it is expressed to be
a party and each transaction contemplated under those
documents did not and will not violate in any respect a
provision of:
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(i) a law or treaty or a judgment, ruling, order or
decree of a Governmental Agency binding on it;
(ii) its memorandum or articles of association or other
constituent documents; or
(iii) any other document or agreement which is binding
on it or its assets,
and, except as provided by the Transaction Documents, did
not and will not:
(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) (ACCOUNTS)
(i) Its most recent consolidated and unconsolidated
audited Accounts give a true and fair view of its
and its Subsidiaries' and the Trust's state of
affairs at the date to which they relate and the
results of its and its Subsidiaries' operations
for the accounting period ended on that date.
(ii) There has been no change in its and its
Subsidiaries' and the Trust's state of affairs
since that date which may have a Material Adverse
Effect.
(iii) Those Accounts comply:
(A) with current accounting practice except to
the extent disclosed in them; and
(B) with all applicable laws.
(iv) All material Financial Indebtedness and other
material contingent liabilities are disclosed in
those Accounts.
(v) No Relevant Company has executed a Guarantee for
the purpose of obtaining an order under section
313 of the Corporations Law or an equivalent
provision or for the purpose of complying with any
such order.
(g) (NO LITIGATION) No litigation, arbitration, Tax claim,
dispute or administrative or other proceeding is current or
pending or, to its knowledge, threatened, which may have a
Material Adverse Effect.
(h) (NO DEFAULT)
(i) It is not and none of its Subsidiaries is in
default under a document or agreement (including,
without limitation, an Authorisation) binding on
it or its assets which relates to Financial
Indebtedness or is material; and
(ii) nothing has occurred which constitutes an event of
default, cancellation event, prepayment event or
similar event (whatever called) under any document
or agreement referred to in sub-paragraph (i),
whether immediately or after notice or lapse of
time or both,
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where, in either case, that may have a Material Adverse
Effect.
(i) (AUTHORISATIONS) Each Authorisation which is required in
relation to:
(i) the execution, delivery and performance by it of
the Relevant 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 the effectiveness or priority of each Security
Document or any Collateral Security; and
(iii) its business as now conducted or contemplated and
which is material (including, without limitation.
under Environmental Law),
has been obtained or effected. Each is in full force and
effect. It has complied with each of them. It has paid all
applicable fees for each of them.
(j) (NO MISREPRESENTATION) All information provided by it to the
Agent and the Lenders is true in all material respects at
the date of this Agreement or, if later, when provided.
Neither that information nor its conduct and the conduct of
anyone on its behalf in relation to the transactions
contemplated by the Transaction Documents, was or is
misleading, by omission or otherwise.
(k) (DISCLOSURE) Each document or agreement and all information
which is material to the Relevant Documents or the ability
of a Relevant Company to perform its obligations under a
Relevant Document, or which has the effect of varying a
Relevant Document, has been disclosed to the Agent in
writing.
(l) (COPIES OF DOCUMENTS) All copies of documents (including,
without limitation, its latest audited Accounts and all
Authorisations) given by it or on its behalf to the Agent
are true and complete copies. Those documents are in full
force and effect.
(m) (TITLE)
(i) It is the sole beneficial owner of the Mortgaged
Property purported to be charged or mortgaged by
it and all material assets included in its latest
audited Accounts free of any other third party
right or interest whatever other than:
(A) as permitted by Clause 20.1(f) (NEGATIVE
PLEDGE); and
(B) in the case of Quetala, the interests of
unitholders of the Trust in assets held by
Quetala as trustee of the Trust.
(ii) None of its assets is subject to a Security
Interest which is not permitted by Clause 20.1(0
(NEGATIVE PLEDGE).
(n) (LAW) It and each of its Subsidiaries has complied with all
laws (including, without limitation, any Environmental Law)
binding on it where breach may have a Material Adverse
Effect.
(o) (TAXES) It has paid all Taxes due and payable by it other
than Taxes being contested in good faith.
(p) (ENVIRONMENTAL LAW) No act or omission has occurred and
there is no circumstance relating to the Mortgaged Property
or its assets or its business or the assets or business of
any of its Subsidiaries which has given rise or may give
rise to:
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(i) a substantial claim against it or any of its
Subsidiaries; or
(ii) a requirement of substantial expenditure by it or
any of its Subsidiaries, or of cessation or
substantial alteration of its activity or that of
any of its Subsidiaries,
under Environmental Law.
(q) (TRUST) It does not hold any assets as the trustee of any
trust except, in the case of Quetala, in relation to the
Trust.
(r) (CORPORATE TREE)
(i) Duxtech is the sole beneficial owner of all shares
in the Borrower, Quetala and Quetack.
(ii) Thermadyne Australia is the sole beneficial owner
of all shares in Duxtech.
(iii) Quetack is the sole beneficial owner of all units
in the Trust.
(s) (SUBSIDIARIES) It has no Australian Subsidiaries at the date
of this Agreement except as disclosed in paragraph (r).
(t) (FINANCIAL INDEBTEDNESS) At the date of this Agreement it
has no Financial Indebtedness except as disclosed in
Annexure E.
(u) (RESTRICTED TRANSACTIONS) At the date of this Agreement
neither the Borrower nor any Guarantor is party to a
Restricted Transaction or otherwise under any obligation to
make any payment to an Associate on any account or for any
reason.
(v) (RELATED PARTY TRANSACTIONS) All transactions between
members of the Group, or between any member of the Group and
Thermadyne Holdings or any of its Subsidiaries, have been
conducted as permitted by Clause 20.1(i).
19.2 TRUSTEE REPRESENTATIONS AND WARRANTIES
Quetala, as trustee of the Trust and in its own right, makes the
following representations and warranties.
(a) (TRUST POWER) It is empowered by the Trust Deed:
(i) to enter into and perform the Transaction
Documents to which it is expressed to be a party
and to carry on the transactions contemplated by
those documents; and
(ii) to carry on its business as now conducted or
contemplated and to own its assets (including the
Mortgaged Property purported to be charged or
mortgaged by it),
in its capacity as trustee of the Trust. There is no
restriction on or condition of its doing so.
(b) (TRUST AUTHORISATIONS) All necessary resolutions have been
duly passed and all consents, approvals and other procedural
matters have been obtained or attended to
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as required by the Trust Deed for it to enter into and
perform the Transaction Documents to which it is expressed
to be a party.
(c) (SOLE TRUSTEE) It is the sole trustee of the Trust.
(d) (NO RESETTLEMENT) No property of the Trust has been
resettled or set aside or transferred to any other trust.
(e) (NO TERMINATION) The Trust has not been terminated, nor has
any event for the vesting of the assets of the Trust
occurred.
(f) (RIGHT OF INDEMNITY) Its right of indemnity out of, and lien
over, the assets of the Trust have not been limited in any
way. Without limitation, it has no liability which may be
set off against that right of indemnity.
(g) (COMPLIANCE WITH LAW) The Trust Deed complies with all
applicable laws.
(h) (COMPLIANCE WITH TRUST DEED) It has complied with its
obligations and duties under the Trust Deed. No one has
alleged that it has not so complied.
19.3 RELIANCE ON REPRESENTATIONS AND WARRANTIES
Each of the Borrower, each Guarantor and Thermadyne Australia
acknowledge that the Agent and the Lenders have entered the
Transaction Documents in reliance on the representations and
warranties in this clause.
20. UNDERTAKINGS
20.1 GENERAL UNDERTAKINGS
Each of the Borrower, each Guarantor and Thermadyne Australia
undertakes to each Indemnified Party as follows, except to the extent
that the Agent acting on the instructions of the Majority Lenders
consents and except that Thermadyne Australia gives only the
undertakings in paragraphs (a)(i), (a)(ii), (a)(viii), (b), (d)(i),
(d)(iv), (d)(v), (f), (k), (m)(i) and (t).
(a) (CORPORATE REPORTING AND INFORMATION) It will provide to the
Agent in sufficient copies for the Lenders:
(i) (ANNUAL ACCOUNTS) as soon as practicable (but in
any event within 120 days) after the close of each
of its financial years copies of its consolidated
and unconsolidated, and the Trust's, audited
Accounts in respect of that financial year;
(ii) (QUARTERLY ACCOUNTS) as soon as practicable (but
in any event within 45 days) after each Quarterly
Date, copies of its consolidated and
unconsolidated, and the Trust's, unaudited
Accounts in respect of the quarter ending on that
Quarterly Date;
(iii) (BUSINESS PLAN)
(A) within 60 days after the date of this
Agreement, copies of the Business Plan for
the remainder of the 1996 calendar year;
and
(B) as soon as practicable (but in any event
not later than 30 days) after the
commencement of each subsequent calendar
year, copies of the Business Plan for that
year;
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(iv) (COMPLIANCE) at the time it provides the Accounts
referred to in sub-paragraphs (i) and (ii) a
certificate signed by two directors of the
Borrower in a form acceptable to the Agent which
discloses all Restricted Transactions in the
period since a certificate was last provided under
this sub-paragraph;
(v) (RATIOS) at the time it provides the Accounts
referred to in sub-paragraphs (i) and (ii) a
certificate signed by two directors of the
Borrower in a form acceptable to the Agent which
certifies whether in their opinion:
(A) the Group has complied with the financial
undertakings in Clause 20.4; and
(B) the asset ratio in Clause 20.5(a) has been
exceeded so as to entitle the Majority
Lenders to give the Borrower a prepayment
notice under that clause,
and which details:
(C) the figures and calculations supporting
the certificate; and
(D) any past breaches of those undertakings
not already notified and, if applicable,
how they were remedied;
(vi) (INSURANCE) on or before the date of this
Agreement and afterwards on or before September 30
in each year, in relation to any insurance
effected by it or on its behalf a certificate,
signed by the underwriter, specifying:
(A) The Insured - including the respective
rights and interest of the Lenders;
(B) The Insurer - lead and otherwise;
(C) Class of Insurance;
(D) Policy Number;
(E) Period of Insurance;
(F) Risks covered including material damage
and consequential loss;
(G) Location of Risk;
(H) Property Insured;
(I) Interest Insured;
(J) Limit of Liability - both under material
damage and consequential loss;
(K) Amounts Deductible;
(L) Maximum Indemnity Period;
(M) That the policy will not be cancelled
except in accordance with the applicable
requirements of Clause 20.2(c)(vi);
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(vii) (DOCUMENTS ISSUED TO SHAREHOLDERS) promptly,
all documents which applicable law requires it to
issue to its shareholders, debenture holders or
holders of other Marketable Securities issued by
it;
(viii) (THERMADYNE REPORTS) promptly, all financial
reports publicly released by Thermadyne Holdings;
(ix) (LITIGATION) promptly, written particulars of any
litigation, arbitration, Tax claim, dispute or
administrative or other proceeding in relation to
the Mortgaged Property or it or its Subsidiaries
or the Trust involving a claim exceeding
A$500,000 or its equivalent other than a claim
for worker's compensation;
(x) (GOVERNMENTAL AGENCY) promptly, any notice, order
or material correspondence from or with a
Governmental Agency relating to the Mortgaged
Property or its or its Subsidiaries business or
assets which may have a Material Adverse Effect;
(xi) (OTHER INFORMATION) promptly, any other
information in relation to the Mortgaged Property
or its Subsidiaries' financial condition or
business which the Agent may reasonably request.
(b) (ACCOUNTING PRINCIPLES) It will ensure that the Accounts
provided to the Agent under paragraph (a):
(i) comply with current accounting practice except to
the extent disclosed in them and with all
applicable laws; and
(ii) give a true and fair view of the matters with
which they deal.
(c) (AUTHORISATIONS) It will ensure that each Authorisation
required for:
(i) the execution, delivery and performance by it of
the Relevant 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 the effectiveness and priority of each
Security Document or any Collateral Security; and
(iii) the carrying on by it and its Subsidiaries of its
and their business as now conducted or
contemplated (including under Environmental Law),
is obtained and promptly renewed and maintained in full
force and effect. It will pay all applicable fees for them.
It will provide copies promptly to the Agent when they are
obtained or renewed.
(d) (NOTICE TO AGENT) It will notify the Agent as soon as it
becomes aware of:
(i) any Designated Event or Potential Designated
Event;
(ii) any proposal by a Governmental Agency to acquire
compulsorily any of the Mortgaged Property or the
whole or a substantial part of its or any of its
Subsidiaries' assets or business;
(iii) any substantial dispute between it or any of its
Subsidiaries and a Governmental Agency;
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(iv) any change in its Authorised Officers, giving
specimen signatures of any new Authorised Officer
appointed, and, where requested by the Agent,
evidence satisfactory to the Agent of the
authority of any Authorised Officer;
(v) any change in its senior management or in the
senior management of Thermadyne Holdings; and
(vi) any representation given under Clause 19 that is
incorrect or misleading when made or repeated.
(e) (DISPOSAL OF ASSETS) It will not sell or otherwise dispose
of, part with possession of, or create an interest in, any
of the Mortgaged Property or all or a substantial part of
its assets or agree or attempt to do so (whether in one or
more related or unrelated transactions) except (and in the
case of the Mortgaged Property, subject to a Security
Document and any Collateral Security):
(i) as permitted by paragraph (f) (NEGATIVE PLEDGE);
(ii) disposals of stock in trade as permitted by
paragraph (i)(i) (DEALINGS WITH ASSOCIATES); and
(iii) disposals in the ordinary course of day-to-day
trading at arm's length for valuable commercial
consideration of:
(A) stock in trade; or
(B) any other single asset having a net book
value less than or equal to A$100,000 or
where the total net book value of that
asset and all such other assets of the
Group so disposed of in any calendar year
does not exceed A$1,000,000.
Where a Subsidiary issues shares and its holding company
does not acquire all the shares, or (as the case may be) a
ratable portion of those shares according to its then
shareholding, the holding company will be taken to have
disposed of the shares it does not acquire.
(f) (NEGATIVE PLEDGE) It will not create or allow to exist a
Security Interest over its assets other than:
(i) the Security Documents or any Collateral Security;
(ii) a lien arising by operation of law in the ordinary
course of day-to-day trading and not securing
Financial Indebtedness where it duly pays the
indebtedness secured by that lien other than
indebtedness contested in good faith; and
(iii) a margin deposit under a foreign exchange or
interest rate hedging arrangement, entered into in
good faith on normal commercial terms at arm's
length in the ordinary course of business.
(g) (FINANCIAL ASSISTANCE AND INDEBTEDNESS) It will not:
(i) incur any Financial Indebtedness;
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(ii) advance money or make available financial
accommodation to or for the benefit of any person;
or
(iii) give a Guarantee or Security Interest in
connection with an obligation or liability of any
person,
if the aggregate amount of such indebtedness, accommodation
or liability (whether actual or contingent) for the Borrower
and each Guarantor as a whole exceeds or would exceed
A$5,000,000, except that it may:
(iv) incur Financial Indebtedness under the Transaction
Documents;
(v) obtain Parent Funding if it only makes payments of
principal or interest in respect of that
indebtedness in accordance with paragraph (k);
(vi) obtain Secured Financing;
(vii) deposit funds with a bank in the ordinary course
of its business;
(viii) allow its customers to acquire goods and services
on extended terms in the ordinary course of
trading; and
(ix) enter into foreign exchange and interest rate
hedging arrangements in good faith on normal
commercial terms at arm's length in the ordinary
course of business and meet margin requirements
under those arrangements.
The amount of any Financial Indebtedness incurred or
accommodation provided in accordance with any of
sub-paragraphs (iv)-(ix) inclusive will be disregarded in
determining whether the limit in this paragraph has been
exceeded at any time.
(h) (COMMERCIAL DEALINGS)
(i) It will not deal in any way with any person except
at arms' length in the ordinary course of business
for valuable commercial consideration or as
expressly permitted in this Agreement.
(ii) It will obtain a fair market rent or license fee
for any Lease granted by it in respect of any
Mortgaged Property.
(iii) It will not deposit or lend money on terms that it
will not be repaid until its or another person's
obligations or indebtedness are performed or
discharged (except as permitted by paragraph (f)).
(iv) It will not enter into an agreement with respect
to the acquisition of assets on title retention
terms except in the ordinary course of day-to-day
trading.
(v) It will not sell or otherwise dispose of any of
its assets to a person where, under the terms of
that sale or disposal, or under a related
transaction, that asset is or may be Leased to a
Relevant Company or its Associate.
(vi) It will ensure that all sales by the Borrower of
its products are made on terms that not more than
three months' credit after delivery is granted for
the purchase price.
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(i) (DEALINGS WITH ASSOCIATES) It may only enter into a
Restricted Transaction or otherwise deal with an Associate
if:
(i) the transaction or dealing is:
(A) a sale of stock in trade by it to its
Associate in the ordinary course of
business for consideration not less than
the cost of the goods sold; or
(B) a purchase of stock in trade by it from
its Associate in the ordinary course of
business for consideration not more than
the fair market value of the goods sold,
and the sum of the consideration for that
transaction or dealing, and for all other
transactions or dealings of that kind during that
calendar year, is not more than the projected
amount of those transactions or dealings as shown
in the Business Plan for the relevant calendar
year approved by the Agent; or
(ii) the transaction or dealing:
(A) is not a disposal or acquisition by it of
stock in trade;
(B) is at arms length in the ordinary course
of business for valuable commercial
consideration; and
(C) is not otherwise prohibited by any
Transaction Document.
(j) (DISTRIBUTIONS) It will not declare or make or carry into
effect any Distribution (whether in cash or in kind and
whether out of capital, profits, surplus or reserves) to or
in favour of any of its shareholders or Associates or any
other person (other than Distributions by the Borrower,
Quetala or Quetack to Duxtech by way of cash dividend)
unless all of (i), (ii) and (iii) below are satisfied.
(i) Either:
(A) all the Principal Outstanding of the Term
Facility has been repaid and the
Distribution is a cash dividend; or
(B) before all the Principal Outstanding of
the Term Facility has been repaid:
(I) the Distribution is a cash
dividend by Duxtech to Thermadyne
Australia in an amount not
exceeding the amount required to
satisfy Thermadyne Australia's
interest obligations in respect of
the Thermadyne Shareholders Loan
during the succeeding 6 months
(calculated as if the rate at
which interest is charged does not
exceed the Bank Xxxx Rate for that
period plus the Margin applying to
the Term Facility); and
(II) the debt service ratio under
Clause 20.4(a) (tested as if the
date for payment of the
Distribution is a Quarterly Date)
is not less than 2.5:1.
(ii) No Designated Event or Potential Designated Event
has occurred which is continuing unremedied or
which has not been waived.
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(iii) No declaration by the Agent under Clause 21.2 has
been made.
(k) (PAYMENT OF PARENT FUNDING) It will ensure that:
(i) interest payments in respect of any Parent Funding
are only made from surplus cash and if the debt
service ratio under Clause 20.4(a) (tested as if
the date for payment of interest is a Quarterly
Date) is not less than 2.5:1; and
(ii) no payments of principal are made in respect of
any Parent Funding until the Secured Moneys are
fully and finally paid and discharged.
(l) (BUSINESS CONDUCT) It will carry on and conduct its business
in a proper and efficient manner. It will not cease or
materially change its business. It will not take action
whether by acquisition or otherwise which alone or in
aggregate would materially alter the nature of the business
of the Group taken as a whole.
(m) (RESTRICTED ACTIVITIES)
(i) It will ensure that the Borrower's only activities
will be to conduct the Business; that Quetala's
only activities will be to make the Freehold Land
available for use by the Borrower, to act as
trustee of the Trust and to perform its
obligations under the Transaction Documents; that
Quetack's only activities will be to hold all of
the units in the Trust and to perform its
obligations under the Transaction Documents; that
Duxtech's only activities will be to hold the
issued share capital of the Borrower, Quetack and
Quetala and to perform its obligations under the
Transaction Documents; and that Thermadyne
Australia's only activities will be to hold all of
the issued share capital of Duxtech and to perform
its obligations under the Transaction Documents.
(ii) It will not enter into a partnership or joint
venture with another person.
(iii) It will not issue any shares or agree to do so or
grant a person a right to take up any shares
whether exercisable now or in the future or if a
contingency occurs, except to its holding company.
(iv) It will not acquire or establish any business or
acquire any shares.
(v) It will not incur or commit to any capital
expenditure other than under a Business Plan
approved by the Agent.
(vi) It will not create or acquire any Subsidiary.
(n) (VALUATION OF PROPERTY, EFFECT ON SECURITY)
(i) On request by the Agent it will obtain and
promptly provide to the Agent at its cost a
valuation of any land or plant and equipment
nominated by the Agent conducted by an independent
valuer acceptable to, and on instructions approved
by, the Agent.
(ii) Within 90 days after the end of each of its
financial years it will deliver to the Agent a
certificate of the Group's auditor stating as at
the last day of that financial year, separately by
jurisdiction and by Group member, the book value of
the Group's property and assets in each State or
Territory of Australia and in any place outside
Australia.
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(iii) The Borrower will do, promptly and at its cost,
anything the Agent requests for the purpose of
amending the deed of charge referred to in
paragraph (c) of the definition of SECURITY
DOCUMENTS so that the charge secures an amount at
least equal to the book value of the Borrower's
property and assets outside Victoria as shown in
the most recent certificate provided under
sub-paragraph (ii).
(o) (CORPORATE EXISTENCE AND COMPLIANCE WITH LAW)
(i) It will do everything necessary to maintain its
corporate existence in good standing. It will not
transfer its jurisdiction of incorporation or
enter any merger or consolidation.
(ii) It will comply with all laws binding on it where
non-compliance may have a Material Adverse Effect.
(iii) It will pay all Taxes payable by it when due, but:
(A) it need not pay Taxes for which it has set
aside sufficient reserves and which are
being contested in good faith, except
where failure to pay those Taxes may have
a Material Adverse Effect; and
(B) it will pay contested Taxes which it is
liable to pay on the final determination
or settlement of the contest.
(p) (COMPLIANCE AND ENFORCEMENT OF MATERIAL DOCUMENTS) It will:
(i) comply fully with its obligations under the
Material Documents;
(ii) use its best endeavors to keep the Material
Documents valid and enforceable; and
(iii) enforce each Material Document to which it is a
party, and exercise its rights, authorities and
discretions under those documents, in a manner and
to an extent which is prudent. While a Designated
Event or Potential Designated Event subsists, it
will enforce those documents and exercise those
rights, authorities and discretions in accordance
with the directions (if any) of the Agent.
(q) (VARIATION OF MATERIAL DOCUMENTS) It will not:
(i) amend or vary, or consent to any amendment or
variation of;
(ii) avoid, release, surrender, terminate, rescind,
discharge (other than by performance) or accept
the repudiation of;
(iii) expressly or impliedly waive, or extend or grant
time or indulgence in respect of, any provision of
or obligation under; or
(iv) do or permit anything which would enable or give
grounds to another party to do anything referred
to in sub-paragraphs (i), (ii) or (iii) in relation
to,
a Material Document if that may have a Material Adverse
Effect.
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(r) (CIG AGREEMENTS) It will take whatever action is
commercially reasonable and within its power to procure The
Commonwealth Industrial Gases Limited to execute, as soon as
practicable after the date of this Agreement, an agreement
with the Agent in connection with the Business Agreements in
substantially the same terms as the CIG Agreement.
(s) (EXECUTIVE CONTRACTS) Not later than 30 days after the date
of this Agreement the Borrower will enter into an employment
contract with each Executive on terms substantially the same
as Annexure G.
(t) (RATIFICATION) As a shareholder of any Relevant Company, it
ratifies and confirms the execution, delivery and
performance by each Relevant Company of each Transaction
Document.
20.2 UNDERTAKINGS RELATING TO MORTGAGED PROPERTY
The Borrower and each Guarantor undertakes to each Indemnified Party
as follows, except to the extent that the Agent acting on the
instructions of the Majority Lenders consents otherwise.
(a) (PAY OUTGOINGS)
(i) Subject to sub-paragraph (ii), it will promptly pay
all outgoings payable by it in respect of the
Mortgaged Property (including rent and Taxes).
(ii) It need not pay outgoings which are being
contested in good faith except where failure to
pay may have a Material Adverse Effect.
(iii) It will pay contested outgoings which it is liable
to pay on the final determination or settlement of
the contest.
(iv) On request by the Agent it will immediately
provide to the Agent evidence of every payment
covered by this undertaking.
(b) (MAINTENANCE)
(i) It will maintain the Mortgaged Property in a good
state of repair and in good working order and
condition (fair wear and tear excepted).
(ii) On being required to do so by the Agent it will
immediately amend every defect in the repair and
condition of the Mortgaged Property (fair wear and
tear excepted).
(c) (INSURANCE)
(i) (GENERAL OBLIGATION) In its name and in the name
of the Agent on behalf of the Lenders it will:
(A) insure and keep insured the Mortgaged
Property which is of an insurable nature
to the full replacement or re-instatement
value; and
(B) take out and keep in force other insurance
with respect to the Mortgaged Property and
each business in which the Mortgaged
Property is used (including any insurance
reasonably requested by the Agent and
public risk, worker's compensation,
product liability and business
interruption insurance),
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in the manner and to the extent:
(C) which the Agent determines reasonable and
customary for a business enterprise
engaged in a similar business and in a
similar locality, and for property of the
nature of the Mortgaged Property; or
(D) for so long as the Agent has made no
determination or request under this
subparagraph (i), which a business
enterprise holding similar property, and
engaged in a business in a similar
locality, would prudently insure against.
(ii) (PAYMENT OF PREMIUMS) It will pay when due all
premiums, commissions, levies, stamp duties,
charges and other expenses necessary for taking
out those insurance policies and keeping them in
force.
(iii) (INSURERS) It will take out each insurance policy
with independent and reputable insurers approved
by the Agent located in jurisdictions approved by
the Agent. The Agent will not unreasonably
withhold that approval.
(iv) (INFORMATION) On request it will provide to the
Agent certificates of currency in respect of all
insurance policies, and other details on the
insurance policies which the Agent requires.
(v) (NO PREJUDICIAL ACTION) It will not do, permit, or
omit to do, anything which may prejudice an
insurance policy.
(vi) (CONTENTS OF POLICY) Without limiting subparagraph
(i), it will ensure that each insurance policy is
on terms and conditions satisfactory to the Agent
and, without limitation, provides that:
(A) with respect to a claim over A$1,000,000,
the Agent (on behalf of the Lenders) is
named as loss payee;
(B) the proceeds resulting from a claim under
the policy will be paid to the Agent other
than claims under a public liability
policy and claims for less than
A$1,000,000 made before the Agent notifies
the insurer that a Security Document has
become enforceable;
(C) the amount of any excess or deductible
payable by the insured in respect of a
claim will not exceed the amount which the
Agent determines is customary for similar
policies;
(D) the insurer waives its right to set off or
counter claim or to make any other
deduction or withholding against the Agent
and each person claiming under the Agent;
(E) the insurer Will not terminate the policy
unless the relevant default or breach
remains unremedied for at least 30 days
after notice by the insurer to the Agent
specifying the default or breach;
(F) to the extent that the policy covers the
interest of the Agent and the Lenders the
insurer will not refuse or reduce a claim
or cancel or avoid the policy except where
the right to do so results from the fraud
of the Agent or a Lender;
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(G) where the asset in respect of which a
claim is made is not to be replaced or
reinstated, the amount payable under the
policy will not be less than the indemnity
value of the asset at the time of the
event giving rise to the claim; and
(H) there is no averaging provision.
(vii) (REMEDY OF DEFAULT) If:
(A) it fails to take out or to keep in force
an insurance policy;
(B) the Agent determines that the insurer may
become entitled to cancel or avoid an
insurance policy; or
(C) the Agent determines that the insurer
under a policy may not be capable of
meeting a claim,
the Agent may do anything which it determines is
advisable or necessary to take out or keep in
force that policy or to take out a new policy
complying with this clause at the cost of the
Borrower and in the name of the Borrower or the
Lender or both. The Agent is not obliged to do
anything under this subparagraph.
(viii) (ENFORCEMENT BY AGENT) It will do everything
(including providing documents, evidence and
information) necessary or desirable in the opinion
of the Agent to enable the Agent to claim, and to
collect or recover money due, under or in respect
of, an insurance policy.
(ix) (NOTICE OF CLAIMS) As soon as possible it will
notify:
(A) (I) the Agent; and
(II) (when it is required or it is
advisable to do so) the relevant
insurer,
of any event which does or may give rise
to a claim of A$1,000,000 or its
equivalent or more under an insurance
policy; and
(B) the Agent of:
(I) a cancellation, change or
reduction in an insurance policy;
(II) an insurance policy becoming void
or voidable; or
(III) any other material circumstance or
correspondence relating to an
insurance policy.
(x) (INSURANCE PROCEEDS) It will ensure that the
proceeds of all insurance policies received by it
are used to replace, restore, repair or otherwise
remedy the relevant loss, damage or liability
suffered unless:
(i) the proceeds exceed A$1,000,000 and the
Agent is not reasonably satisfied that the
Borrower will be able to satisfy its
obligations under the Transaction
Documents; or
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(ii) a Designated Event is subsisting; or
(iii) in any other case, it resolves in good
faith not to do so, in which event the
proceeds shall be applied towards payment
of the Secured Moneys (appropriated
between the Secured Moneys as the
Agent determines).
(d) (ALTERATIONS) It will not alter, or permit any person to
alter, the Mortgaged Property materially.
(e) (PRESERVATION AND PROTECTION OF SECURITY)
(i) It will promptly do everything necessary or
reasonably required by the Agent:
(A) to preserve and protect the Mortgaged
Property; and
(B) to protect and enforce its title and the
title of the Agent and the Lenders as
mortgagee to the Mortgaged Property.
(ii) Without limiting the generality of subparagraph
(i), it will not permit lodgement of a caveat
forbidding the recording of an interest of it or
the Agent or a Lender in the Mortgaged Property.
(iii) If a caveat is lodged (other than a caveat lodged
by the Agent on behalf of the Lenders) it will
promptly do everything in its power to remove it.
(iv) The generality of this paragraph does not limit,
nor is it limited by, the generality of any other
paragraph of this clause.
(f) (OTHER SECURITY INTERESTS) It will comply fully with all
Security Interests affecting the Mortgaged Property and the
obligations secured by those Security Interests.
(g) (ENVIRONMENTAL LAW)
(i) It will maintain procedures which in the
reasonable opinion of the Agent are adequate to
monitor:
(A) its compliance with Environmental Law and
Authorizations; and
(B) circumstances which may give rise to a
claim or to a requirement of substantial
expenditure by it or of cessation or
material alteration of its activity
(PERILOUS CIRCUMSTANCES).
(ii) It will:
(A) not later than 24 months after the date of
this Agreement, take each step and
complete each task described as PRIORITY 1
in the Phase 2 Environmental Assessment
prepared by Xxxxxxx Partners Pty Ltd dated
23 November 1995 (the REPORT);
(B) not later than 36 months after the date of
this Agreement, take each step and
complete each task described as PRIORITY 2
in the Report; and
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(C) at the time it provides the Accounts
referred to in Clause 20.1(a)(ii), report
to the Agent on the progress made in
carrying out the recommendations in the
Report.
(iii) Where the Agent reasonably suspects that it is not
complying with subparagraph (i) or (ii) or with an
Environmental Law or Authorization, the Agent may
have an audit conducted of its procedures, its
compliance and any Perilous Circumstances. It
will do everything necessary to facilitate that
audit.
(iv) Where the procedures or the audit referred to in
this paragraph reveal any non-compliance with
Environmental Law or Authorizations, or reveal any
Perilous Circumstances, it will promptly remedy
them.
20.3 UNDERTAKINGS RELATING TO MARKETABLE SECURITIES
Quetack undertakes to maintain and protect all Marketable Securities
included in the Mortgaged Property. Without limitation, it
undertakes as follows, except to the extent that the Agent acting on
the instructions of the Majority Lenders consents otherwise.
(a) (NOTIFY RIGHTS OFFERED OR ACCRUING) It will:
(i) notify the Agent immediately if it becomes
entitled to, or is offered, New Rights; and
(ii) ensure that all documents relating to New Rights
or arising out of their subscription, taking up or
exercise are delivered to the Agent.
(b) (SUBSCRIBE TO RIGHTS) If the Agent directs, it will promptly
subscribe to, take up or exercise New Rights.
(c) (REMEDY DEFECTS) It will remedy each defect in its holding
of those Marketable Securities.
(d) (TAKE PROCEEDINGS) It will take or defend all legal
proceedings which the Agent requires to protect or recover
those Marketable Securities.
(e) (EXECUTE DOCUMENTS) It will execute each document to which
it is expressed to be a party in relation to any thing
required under this clause.
(f) (PAY CALLS) It will duly pay all calls in respect of those
Marketable Securities.
(g) (DELIVER DOCUMENTS) Immediately on receipt by it or for its
account, it will deliver to the Agent but not by way of
mortgage each certificate, acceptance, contract note or
transfer for those Marketable Securities;
(h) (RETURN OF DOCUMENTS) If the Agent makes available a
document relating to those Marketable Securities or New
Rights for registration, stamping, exercise, acceptance or
another purpose:
(i) it will ensure that the document or each resulting
or replacement document (as the case may be) is
delivered directly to the Agent when available or
returned; and
(ii) to the extent required by the Agent, it will
ensure that all persons dealing with it have
notice of the Security Documents.
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(The Agent will make available any document which it holds
on reasonable request by Quetack for the purpose of
recording, perfecting or preserving the title of Quetack to
Marketable Securities, or exercising rights attaching to
Marketable Securities in a manner consistent with the
security of the Agent and the Lenders, if arrangements
satisfactory to the Agent are in place to protect the
security of the Agent and the Lenders.)
(i) (NOTHING PREJUDICIAL) It will not do or omit to do anything
which might render those Marketable Securities liable to
forfeiture, cancellation, avoidance or loss or might
otherwise prejudicially affect the interest of the Agent and
the Lenders in them or their value.
(j) (MEETINGS OF SHAREHOLDERS OR UNITHOLDERS) It will
immediately provide to the Agent certified copies of all
reports and other documents received by it in its capacity
as a holder of those Marketable Securities or relating in
any way to those Marketable Securities including any report
or notice of any meeting which the holder of Marketable
Securities is entitled to attend or vote at or both.
(k) (VOTE)
(i) Subject to sub-paragraph (ii), it will vote those
Marketable Securities in a prudent manner.
(ii) It will not vote those Marketable Securities while
a Designated Event or Potential Designated Event
subsists or after the Security Documents have been
enforced, except with the consent of the Agent.
20.4 FINANCIAL UNDERTAKINGS
The Borrower, Thermadyne Australia and each Guarantor undertake to
each Indemnified Party as follows, except to the extent that the
Agent acting on the instructions of the Majority Lenders consents.
(a) (DEBT SERVICE COVER) It will ensure that the ratio of:
(i) EBIDA at each Quarterly Date and in respect of the
12 month period ending on that date; to
(ii) Interest Expense under this Agreement plus
Principal Outstanding paid or payable under Clause
10 during that period,
is not less than 2.5:1.
(b) (INTEREST COVER) It will ensure that the ratio of:
(i) EBITDA at each Quarterly Date and in respect of
the 12 month period ending on that date; to
(ii) Interest Expense under this Agreement during that
period,
is not less than 3.5:1.
(c) (SHAREHOLDERS' FUNDS) It will ensure that the ratio of
Shareholders' Funds at each Quarterly Date to Total Assets
at that date is not less than 1:2.
(d) (CURRENT RATIO) It will ensure that the ratio of Current
Assets at each Quarterly Date to Current Liabilities at that
date is not less than 1:1.
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(e) (BORROWING BASE) It will ensure that the Principal
Outstanding does not exceed at any time the sum of:
(i) 60% of the total amount shown by the Latest
Accounts as book debts of the Group on a
consolidated basis (excluding receivables due for
more than 60 days and after deducting bad debts
and provisions for doubtful debts); and
(ii) 50% of the total amount shown by the Latest
Accounts as stock in trade (including work in
progress and goods in transit in accordance with
current accounting practice) of the Group on a
consolidated basis; and
(iii) 50% of the current market value of all plant and
equipment of the Group; and
(iv) 75% of the current market value of the Freehold
Land (or so much of it as remains subject to the
Mortgage),
but on the basis that, in each case, reference is only made
to the relevant assets of the Group located in Victoria and
charged or mortgaged to the Agent under a Security Document.
For the purposes of sub-paragraphs (iii) and (iv) the current
market value of an asset will be its market value as shown:
(v) by the most recent independent valuation provided
to the Agent; or
(vi) if that valuation is more than 3 years old, by a
valuation obtained in accordance with Clause
20.1(n)(i) (and the Agent will be taken to have
requested that valuation).
(f) (REPETITION) Compliance with the undertakings in paragraphs
(a)-(d) inclusive will be tested:
(i) on the basis of the relevant quarterly Accounts
provided under Clause 20.1(a)(ii); and
(ii) on the basis of the relevant annual audited
Accounts provided under Clause 20.1(a)(i),
in each case, at the time those Accounts are provided. In
paragraph (g), references to THE ACCOUNTS will be construed
accordingly.
(g) (DEFINITIONS) In this Clause 20.4 the following definitions
apply.
CURRENT ASSETS means at any time the total amount shown by
the Accounts as current assets of the Group on a
consolidated basis.
CURRENT LIABILITIES means at any time the total amount shown
by the Accounts of all current liabilities of the Group on a
consolidated basis in respect of Financial Indebtedness or
otherwise (including the Principal Outstanding payable in
the immediately following 12 month period).
EBIDA means in respect of any period the amount shown by the
Accounts for that period as earnings before Interest
Expense, depreciation and amortisation but after Tax of the
Group on a consolidated basis.
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EBITDA means in respect of any period the amount shown by
the Accounts for that period as earnings before Interest
Expense, Tax, depreciation and amortisation of the Group on
a consolidated basis.
INTEREST EXPENSE means all interest and amounts in the
nature of interest or of similar effect to interest
(including amounts other than principal payable under this
Agreement) paid or payable by a member of the Group.
LATEST ACCOUNTS means at any time the latest Accounts of the
Group provided to the Agent in accordance with this
Agreement.
SHAREHOLDERS' FUNDS means at any time the amount shown by
the Accounts on a consolidated basis for the Group as the
sum of total ordinary equity plus reserves plus retained
earnings plus preference capital plus shareholders' loans.
TOTAL ASSETS means at any time the total amount shown by the
Accounts as the assets of the Group on a consolidated basis.
20.5 PREPAYMENT ON CHANGE IN DISTRIBUTION OF ASSETS
(a) (NOTICE) If the value of the Tangible Assets of the Group
located outside Victoria exceeds at any time 25% of the
value of the total Tangible Assets of the Group, each as
shown by the latest Accounts of the Group provided to the
Agent under this Agreement, then the Majority Lenders may
notify the Borrower through the Agent that they require the
Borrower to prepay an amount of the Principal Outstanding
specified in the notice.
(b) (PREPAYMENT) The Borrower shall prepay in accordance with
the notice.
(c) (APPLICATION BETWEEN FACILITIES) Unless the Agent agrees
otherwise, prepayments under this clause will be applied
ratably amongst outstanding Segments of the Term Facility
and of the Revolving Credit Facility.
(d) (REDRAWING) Prepayments under this clause will not be
available for redrawing. The applicable Commitments will be
reduced by an amount equal to the principal amount prepaid.
(e) (PAYMENT DATE) The Borrower shall make the prepayment within
30 days after the date of the notice. To the extent
practicable, and without limiting paragraph (c), prepayments
will only be applied against Segments which have Selection
Dates falling on the date for prepayment.
(f) (APPORTIONMENT) Prepayments under this clause will be
applied ratably in reduction of the respective
participations of all the Lenders in the Principal
Outstanding.
(g) (DEFINITIONS) In this clause 20.5 TANGIBLE ASSETS means all
assets other than goodwill, patents, trademarks, design
rights, franchises, future Tax benefits, underwriting and
formation expenses and any other items which according to
current accounting practice are regarded as intangible
assets.
20.6 UNDERTAKINGS RELATING TO TRUST
Quetala as trustee of the Trust, and in its own right, undertakes to
each Indemnified Party as follows, except to the extent that the
Agent acting on the instructions of the Majority Lenders consents.
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(a) (AMENDMENT TO TRUST DEED) It will ensure that the Trust Deed
is not amended or revoked.
(b) (RESETTLEMENT) It will ensure that there is no resettlement,
setting aside or transfer of any asset of the Trust other
than a transfer which complies with both the Trust Deed and
the Transaction Documents.
(c) (OBLIGATIONS) It will comply fully with its obligations
under the Trust Deed and at law.
(d) (NO ADDITIONAL TRUSTEE) It will ensure that no other person
is appointed trustee of the Trust.
(e) (NOT RETIRE) It will not do anything which would cause or
enable its removal, nor will it retire, as trustee of the
Trust.
(f) (NO VESTING) It will ensure that the vesting date is not
determined, and will not otherwise alter, shorten or fix the
vesting date under the Trust Deed.
(g) (RIGHT OF SUBROGATION AND INDEMNITY) It will ensure that:
(i) there is no restriction or limitation on or
derogation from its right of subrogation or
indemnity (whether or not arising under the Trust
Deed); and
(ii) its lien over the property of the Trust will have
priority over the rights of the beneficiaries of
the Trust.
(h) (NO DISTRIBUTION) It will not distribute any capital or
income of the Trust except in the ordinary course of
business out of the trading profits of the Trust (excluding
extraordinary items, sales of fixed assets and revaluations)
when all of the following are satisfied:
(i) the distribution is a cash distribution and all of
the Principal Outstanding under the Term Facility
has been repaid;
(ii) no Designated Event or Potential Designated Event
is subsisting; and
(iii) no declaration by the Agent under Clause 21.2 has
been made.
(i) (NOTICES) It will promptly give the Agent copies of all
documents and notices received by it from any beneficiary or
manager of the Trust or which it gives to a beneficiary or
manager of the Trust.
20.7 TERM OF UNDERTAKINGS
Each undertaking in this clause continues from the date of this
Agreement until the Secured Moneys are fully and finally repaid.
21. DESIGNATED EVENTS
21.1 DESIGNATED EVENTS
Each of the following is a Designated Event (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 a Transaction
Document when due;
(ii) to comply with any of its obligations under Clause
20.4;
(iii) to comply with any of its other obligations under
a Transaction Document and, if in the opinion of
the Agent that failure can be remedied within 10
Business Days, does not remedy the failure within
that period; or
(iv) to satisfy within the time stipulated anything
which the Agent 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 or on behalf of a Relevant Company in a Transaction
Document, or in a document provided under or in connection
with a Transaction Document, is not true or is misleading
when made or repeated and that has a Material Adverse
Effect.
(c) (CROSS DEFAULT)
(i) Financial Indebtedness of a Relevant Company
aggregating to at least A$100.000 or its
equivalent:
(A) is not paid when due (or within an
applicable grace period); or
(B) becomes due and payable or capable of
being declared due and payable before its
stated maturity or expiry; or
(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 aggregating to at least
A$100,000 or its equivalent is prematurely
terminated; or
(iii) an event of default as defined in another
Transaction Document occurs.
For the purpose of this paragraph, if a person is required
to provide cash cover for Financial Indebtedness as a result
of an actual, likely or threatened default or an event of
default or termination, cancellation, special prepayment or
similar event, whatever called, that Financial Indebtedness
will be taken to be due and payable. Sub-paragraphs (i)(B)
and (ii) will not apply if a Relevant Company exercises an
optional right of prepayment or termination in the absence
of actual, likely or threatened default or an event of
default or termination, cancellation, special prepayment or
similar event, whatever called.
(d) (ADMINISTRATION, WINDING UP, ARRANGEMENTS, INSOLVENCY ETC.)
(i) An administrator of a Relevant Company is
appointed.
(ii) Except for the purpose of a solvent reconstruction
or amalgamation previously approved by the Agent:
(A) an application or an order is made,
proceedings are commenced, a resolution
is passed or proposed in a notice of
meeting or an application to a court or
other steps are taken for:
(I) the winding up, dissolution or
administration of a Relevant
Company; or
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(II) a Relevant Company entering into
an arrangement, compromise or
composition with or assignment for
the benefit of its creditors or a
class of them,
(other than applications, proceedings,
notices and steps which are frivolous or
vexatious or which are dismissed or
withdrawn within five Business Days); 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:
(A) is, or under legislation is presumed or
taken to be, insolvent (other than as the
result of a failure to pay a debt or claim
the subject of a good faith dispute); or
(B) 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
Agent, a Relevant Company:
(i) reduces its capital (including, without
limitation, a purchase of its shares but excluding
a redemption of redeemable shares);
(ii) passes a resolution to reduce its capital or to
authorize it to purchase its shares or a
resolution under section 188(2) or 205(10) of the
Corporations Law or an equivalent provision, or
calls a meeting to consider such a resolution; or
(iii) applies to a court to call any such meeting or to
sanction any such resolution or reduction.
(g) (ANALOGOUS PROCESS FOR RELEVANT COMPANY OR THERMADYNE
HOLDINGS)
(i) Anything analogous to anything referred to in
paragraphs (d) to (f) inclusive, or having
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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(ii) An involuntary proceeding is commenced or an
involuntary petition is filed in a court of
competent jurisdiction seeking:
(A) relief in respect of Thermadyne Holdings,
or of a substantial part of its property
or assets, under Title 11 of the United
States Code or any other United States
federal or state or foreign bankruptcy,
insolvency, receivership or similar law;
(B) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or
similar official for, or for a substantial
part of, the property or assets of
Thermadyne Holdings; or
(C) the winding-up or liquidation of
Thermadyne Holdings,
other than a petition or proceeding which is
dismissed or withdrawn within 5 Business Days.
(iii) Except for the purpose of a solvent reconstruction
or amalgamation Thermadyne Holdings:
(A) voluntarily commences any proceeding or
files any petition seeking relief under
Title 11 of the United States Code or any
other United States federal or state or
foreign bankruptcy, insolvency,
receivership or similar law;
(B) consents to the institution of, or fails
to contest in a timely and appropriate
manner, any proceeding or the filing of
any petition described in sub-paragraph
(ii);
(C) applies for or consents to the appointment
of a receiver, trustee, custodian,
sequestrator, conservator or similar
official for, or for a substantial part
of, its property or assets;
(D) makes a general assignment for the benefit
of creditors;
(E) becomes unable, admits in writing its
inability or fails generally to pay its
debts as they become due; or
(F) takes any action for the purpose of
effecting any of the foregoing.
(iv) Financial Indebtedness of Thermadyne. Holdings
aggregating to at least US$10,000,000 or its
equivalent becomes due and payable before its
stated maturity or expiry otherwise than as a
consequence of Thermadyne Holdings exercising an
optional right of prepayment or termination in the
absence of an event of default or termination or
similar event, whatever called.
(h) (VITIATION OF DOCUMENTS)
(i) All or any part of a Relevant Document is
terminated or is or becomes void, illegal,
invalid, unenforceable or of limited force and
effect;
(ii) a party becomes entitled to terminate, rescind or
avoid all or part of a Relevant Document; or
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(iii) a party other than the Agent or a 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),
and, in the case of a Material Document, that has a Material
Adverse Effect.
(i) (REVOCATION OF AUTHORISATION) An Authorisation which is
material to the performance by any Relevant Company of a
Relevant Document, or to the validity and enforceability of
a Relevant Document or to the security of the Agent and the
Lenders, is repealed, revoked or terminated or expires, or
is modified or amended or conditions are attached to it in a
manner unacceptable to the Agent, and is not replaced by
another Authorisation acceptable to the Agent, and that has
a Material Adverse Effect.
(j) (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 has or is likely to
have a Material Adverse Effect.
(k) (CONTROL) Without the prior consent of the Agent:
(i) Thermadyne Australia, the Borrower or a Guarantor
becomes a Subsidiary of another person; or
(ii) in the reasonable opinion of the Agent there is a
material change in the ownership or control of
Thermadyne Australia, the Borrower or a Guarantor.
(l) (TRUST)
(i) A new or additional trustee of the Trust is
appointed;
(ii) the beneficiaries resolve to wind up the Trust, or
Quetala is required to wind up the Trust under the
Trust Deed or applicable law, or the winding up of
the Trust commences;
(iii) the Trust is held or is conceded by Quetala not to
have been constituted or to have been imperfectly
constituted;
(iv) Quetala ceases to be authorised under the Trust to
hold the property of the Trust in its name and to
perform its obligations under the Transaction
Documents;
(v) Quetala ceases to be entitled to be indemnified
out of the assets of the Trust in respect of its
obligations under the Transaction Documents or to
have a lien over them; or
(vi) Any transfer of a unit in the Trust is executed by
or on behalf of the holder of that unit.
(m) (COMPULSORY ACQUISITION)
(i) All or any substantial part of the Mortgaged
Property or assets of a Relevant Company is
compulsorily acquired by or by order of a
Governmental Agency or under law; or
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(ii) a Governmental Agency orders the sale,
vesting or divesting of all or any
substantial part of the Mortgaged Property
or assets of a Relevant Company.
(n) (GOVERNMENTAL INTERFERENCE) A law or anything done by a
Governmental Agency wholly or partially to a material extent
renders illegal, prevents or restricts the performance or
effectiveness of a Transaction Document or otherwise has a
Material Adverse Effect.
(s) (ENVIRONMENTAL EVENT)
(i) (A) Any person takes action;
(B) there is a claim; or
(C) there is a requirement of expenditure or
of cessation or alteration of activity,
under Environmental Law, which has or is likely to
have a Material Adverse Effect; or
(ii) a circumstance arises which may give rise to an
action, claim or requirement.
21.2 CONSEQUENCES
In addition to any other rights provided by law or any Transaction
Document, at any time after a Designated Event the Agent may and
shall if the Majority Lenders direct do all or any of the following:
(a) by notice to the Borrower declare the Secured Moneys
immediately due and payable, and the Borrower shall
immediately pay the Secured Moneys;
(b) by notice to the Borrower cancel the Commitments;
(c) at the cost of the Borrower, appoint a firm of independent
accountants or other experts to review and report to the
Agent and the Lenders on the affairs, financial condition
and business of any Relevant Company. Each Relevant Company
will do everything in its power to ensure the review and
report can be carried out promptly, completely and
accurately. Without limitation, it will co-operate fully with
the review and ensure that the accountants and experts are
given access to all premises and records of each Relevant
Company and are given all information concerning any
Relevant Company which they require from time to time. It
will ensure that all officers and employees of each Relevant
Company do the same.
21.3 CASH COVER FOR LETTERS OF CREDIT AND BILLS
(a) Each Lender shall hold by way of cash cover:
(i) any amount paid under Clause 17.5 (ILLEGALITY) or
Clause 21.2(a) (CONSEQUENCES) in respect of the
contingent liability under a Xxxx or Letter of
Credit or in respect of any other sum contingently
owing; and
(ii) interest credited under this clause.
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(b) A Lender:
(i) may at any time apply any such moneys in or
towards satisfaction of any sum at any time
payable by the Borrower to the Lender under or in
relation to any Transaction Document; and
(ii) shall apply any such moneys then remaining against
any amount payable under Clause 13.12 or Clause
15.8, as appropriate.
(c) Any moneys held under paragraph (a) (including interest)
will accrue and be credited with interest at a rate and in
the manner that the Lender determines would apply to
deposits at call (or of any other term specified by the
Agent) of a similar amount under its normal procedures.
(d) The balance of the moneys held under paragraph (a)
(including interest) will only be repayable to the extent
that on any day it exceeds the amount of the Secured Moneys
payable to that Lender (including without limitation the
face amounts of all outstanding Bills or Letters of Credit
and all amounts which are then or may subsequently become
contingently owing). When ever there is such an excess that
excess will be payable on demand.
21.4 TECHNICAL DEFAULT IN PAYMENT
Failure by the Borrower to pay an amount due will not constitute a
Designated Event under Clause 21.1(a)(i) (NONPAYMENT DEFAULT EVENT)
if:
(a) before the exercise of the Agent's powers under Clause 21.2
the Borrower demonstrates to the satisfaction of the Agent
that it had sufficient available funds with its bankers and
had given appropriate instructions to those bankers to make
that payment and that the payment would have been made but
for temporary technical or administrative difficulties
outside the control of the Borrower; and
(b) payment is received in the manner required within 2 Business
Days of the due date.
The Agent need not wait for a demonstration under paragraph (a)
before exercising its powers under Clause 21.2.
22. GUARANTEE
22.1 GUARANTEE
The Guarantors jointly and severally unconditionally and irrevocably
guarantee the due and punctual payment of the Secured Moneys. Each
Guarantor enters into this Agreement for valuable consideration which
includes, without limitation, the Indemnified Parties entering into
this Agreement at its request.
22.2 PAYMENT
If the Borrower fails to pay any Secured Moneys when due, then on
demand from time to time each Guarantor shall pay an amount equal to
those Secured Moneys in the same manner and currency which the
Borrower is required to pay the Secured Moneys under the relevant
Transaction Document (or would have been but for its Liquidation).
22.3 UNCONDITIONAL NATURE OF OBLIGATION
Neither this Agreement, any Security Document nor the obligations of
any Guarantor under this Agreement or any Security Document will be
affected by anything which but for this
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provision might operate to release, prejudicial!y affect or discharge
them or in any way relieve any Guarantor from any obligation
including. without limitation:
(a) the grant to any person of any time, waiver or other
indulgence, or the discharge or release of any person;
(b) any transaction or arrangement that may take place between
any Indemnified Party and any person;
(c) the Liquidation of any person;
(d) any Indemnified Party becoming a party to or bound by any
compromise, moratorium, assignment of property, scheme of
arrangement, composition of debts or scheme of
reconstruction by or relating to any person;
(e) any Indemnified Party exercising or delaying or refraining
from exercising or enforcing any document or agreement or
any right, power or remedy conferred on it by law or by any
Transaction Document or by any other document or agreement
with any person;
(f) the amendment, variation, novation, replacement, rescission,
invalidity, extinguishment, repudiation, avoidance,
unenforceability, frustration, failure, expiry, termination,
loss, release, discharge, abandonment, assignment or
transfer, in whole or in part and with or without
consideration, of any Transaction Document or of any other
document or agreement held by any Indemnified Party at any
time or of any right, obligation, power or remedy;
(g) the taking or perfection of or failure to take or perfect a
document or agreement;
(h) the failure by any person or any Indemnified Party to notify
any Guarantor of any default by any person under any
Transaction Document or any other document or agreement;
(i) any Indemnified Party obtaining a judgment against any
person for the payment of any Secured Moneys;
(j) any legal limitation, disability, incapacity or other
circumstance relating to any person;
(k) any change in any circumstance (including, without
limitation, in the members or constitution of a person);
(l) this Agreement or any other document or agreement not being
valid or executed by, or binding on, any person; or
(m) any increase in the Secured Moneys for any reason
(including, without limitation, as a result of anything
referred to above),
whether with or without the consent of the Guarantors. Without
limitation, this Agreement binds a Guarantor even if it is, or has
become, the only Guarantor bound. None of the above paragraphs limits
the generality of any other. A reference to ANY PERSON includes,
without limitation, any other Guarantor and the Borrower.
22.4 NO MARSHALLING
No indemnified Party is obliged to marshal or appropriate in favor of
any Guarantor or to exercise, apply or recover:
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(a) any Security Interest, Guarantee, document or agreement
(including, without limitation, any Transaction Document)
held by an Indemnified Party at any time; or
(b) any of the funds or assets that an Indemnified Party may be
entitled to receive or have a claim on.
22.5 NO COMPETITION
Until the Secured Moneys have been irrevocably paid and discharged in
full no Guarantor is entitled to, and no Guarantor shall:
(a) be subrogated to any Indemnified Party or claim the benefit
of any Security Interest or Guarantee held by any
Indemnified Party at any time;
(b) either directly or indirectly prove in, claim or receive the
benefit of, any distribution, dividend or payment arising
out of or relating to the Liquidation of the Borrower, any
other Guarantor or any other person who gives a Guarantee or
Security Interest in respect of any Secured Moneys; or
(c) have or claim any right of contribution or indemnity from
the Borrower, any other Guarantor or any other person who
gives a Guarantee or Security Interest in respect of any
Secured Moneys.
The receipt of any distribution, dividend or other payment by any
Indemnified Party out of or relating to any Liquidation will not
prejudice the right of any Indemnified Party to recover the Secured
Moneys by enforcement of this Agreement.
22.6 SUSPENSE ACCOUNT
In the event of the Liquidation of the Borrower or any other person
(including, without limitation, any Guarantor) each Guarantor
authorizes each Indemnified Party:
(a) to prove for all moneys which the Guarantors have paid that
Indemnified Party under this Agreement; and
(b) (i) to retain and carry to a suspense account; and
(ii) to appropriate at the discretion of the Agent,
any dividend received in the Liquidation of the Borrower or
any other person and any other money received in respect of
the Secured Moneys,
until each Indemnified Party has been paid the Secured Moneys in full.
22.7 RESCISSION OF PAYMENT
Whenever for any reason (including without limitation under any law
relating to Liquidation, fiduciary obligations or the protection of
creditors):
(a) all or part of any transaction of any nature (including,
without limitation, any payment or transfer) made during the
term of this Agreement which affects or relates in any way
to the Secured Moneys is void, set aside or voidable;
(b) any claim that anything contemplated by paragraph (a) is so
is upheld, conceded or compromised; or
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(c) any Indemnified Party is required to return or repay any
money or asset received by it under any such transaction or
the equivalent in value of that money or asset,
each Indemnified Party will immediately become entitled against each
Guarantor to all rights in respect of the Secured Moneys and the
Mortgaged Property which it would have had if all or the relevant
part of the transaction or receipt had not taken place. Each
Guarantor shall indemnify each Indemnified Party on demand against
any resulting loss, cost or expense. This clause continues after this
Agreement is discharged.
22.8 INDEMNITY
If any Secured Moneys (including moneys which would have been Secured
Moneys if they were recoverable) are not recoverable from the
Borrower for any reason (including, without limitation, any legal
limitation, disability, incapacity or thing affecting the Borrower)
each Guarantor shall indemnify each Indemnified Party on demand and
shall pay those moneys to the relevant Indemnified Party on demand.
This applies whether or not:
(a) any transaction relating to the Secured Moneys was void or
illegal or has been subsequently avoided; or
(b) any matter or fact relating to that transaction was or ought
to have been within the knowledge of any Indemnified Party.
22.9 CONTINUING GUARANTEE AND INDEMNITY
This clause:
(a) is a continuing guarantee and indemnity;
(b) will not be taken to be wholly or partially discharged by
the payment at any time of any Secured Moneys or by any
settlement of account or other matter or thing; and
(c) remains in full force until the Secured Moneys have been
paid in full and the Guarantors have completely performed
their obligations under this Agreement.
22.10 VARIATIONS
This clause, each Security Document and any Collateral Security
covers the Secured Moneys as varied from time to time including,
without limitation, as a result of:
(a) any amendment to, or waiver under, any Transaction Document;
or
(b) the provision of further accommodation to the Borrower,
and whether or not with the consent of or notice to the Guarantors.
This does not limit any other provision.
22.11 JUDGMENT
A judgment obtained against the Borrower will be conclusive against
each Guarantor.
22.12 CONDITIONS PRECEDENT
Any condition or condition precedent to the provision of financial
accommodation, is for the benefit of the Indemnified Parties and not
the Guarantors. Any waiver of or failure to satisfy
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such a condition or condition precedent will be disregarded in
determining whether an amount is part of the Secured Moneys.
23. INTEREST ON OVERDUE AMOUNTS
23.1 ACCRUAL AND PAYMENT
(a) (ACCRUAL) Interest accrues on each unpaid amount which is
due and payable by the Borrower or a Guarantor under or in
respect of any Transaction Document (including interest
payable under this clause):
(i) 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;
(ii) both before and after judgment (as a separate and
independent obligation); and
(iii) at the rate provided in Clause 23.2 (RATE).
(b) (PAYMENT) Each of the Borrower and the Guarantors shall pay
interest accrued under this clause on demand by the Agent
and on the last Business Day of each calendar quarter. That
interest is payable in the currency of the unpaid amount on
which it accrues.
23.2 RATE
The rate applicable under this clause is the sum of 2% per annum plus
the higher of:
(a) the rate (if any) applicable to the amount immediately
before the due date; and
(b) the sum of the Margin and the rate determined by the Agent
on a monthly basis to be its buying rate as at or about 10
am (Sydney time) for bills of exchange which are accepted by
an Australian bank selected by the Agent and which have a
term not exceeding one month.
24. FEES
24.1 REVOLVING CREDIT FACILITY FEE
(a) A facility fee accrues at 0.75% per annum on the daily
amount of the Revolving Credit Commitment of each Lender
from the date of this Agreement.
(b) The facility fee is calculated on the actual number of days
and on the basis of a year of 365 days.
(c) The Borrower shall pay the facility fee in advance on the
first Business Day of each calendar quarter and on the date
of this Agreement calculated on the Revolving Credit
Commitment at the date of payment. It is not refundable.
24.2 LETTER OF CREDIT FEE
(a) A letter of credit fee accrues at 0.35% per annum (or, if
different, at the rate charged to the Agent or the Lenders
by the applicable Beneficiary) on the daily amount of each
Lender's Share of the face amount of each Letter of Credit
from the date the Letter of Credit is issued.
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(b) The fee is calculated on the actual number of days and on
the basis of a year of 365 days.
(c) The Borrower shall pay the letter of credit fee in advance
on the first Business Day of each calendar quarter and on
the date the Letter of Credit is issued calculated on the
face amount of the Letter of Credit at the date of payment.
It is not refundable.
24.3 ISSUANCE FEE
(a) An issuance fee accrues at 0.75% per annum on the daily
amount of each Lender's Share of the face amount of each
outstanding Letter of Credit from the date the Letter of
Credit is issued.
(b) The fee is calculated on the actual number of days and on
the basis of a year of 365 days.
(c) The Borrower shall pay the issuance fee in advance on the
first Business Day of each calendar quarter and on the date
the Letter of Credit is issued calculated on the face amount
of the Letter of Credit at the date of payment. It is not
refundable.
24.4 AGENT'S FEE
(a) The Borrower shall pay an annual agent's fee (the AGENT'S
FEE) to the Agent for its own account. The amount of the
first payment is $50,000.
(b) On January 1 of each year the Agent's Fee will be varied in
accordance with the following formula.
P= A x B
-----
C
where:
P means the Agent's Fee payable for the following calendar
year;
A means the Agent's Fee payable for the calendar year just
ended;
B means the Index Number last published before the expiration
of the calendar year just ended; and
C means the Index Number last published before the
commencement of the calendar year just ended.
If the Index Number is the quarterly Consumer Price Index
Sydney All Groups number published by the Australian Bureau
of Statistics and that Index Number is revised or corrected
by the Australian Bureau of Statistics after the Agent's Fee
has been calculated, then that Agent's Fee will be revised
in accordance with the revised or corrected Index Number.
If the Agent's Fee has been paid, then a cash adjustment
shall be made between the parties, within 14 days of the
revision or correction, as required.
(c) The Agent's Fee will be paid in advance on January 1 of each
year until the Secured Moneys have been fully and finally
repaid. The first payment will be made on the date of this
Agreement. The fee is non-refundable.
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25. INDEMNITIES
On demand the Borrower shall indemnify each Indemnified Party against
any loss, cost, charge, liability or expense the Indemnified Party
(or any officer of employee of the Indemnified Party) may sustain or
incur as a direct or indirect consequence of:
(a) the occurrence of any Designated Event or Potential
Designated Event;
(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;
(c) a Segment requested in a Drawdown Notice or Selection Notice
not being provided for any reason (including, without
limitation, failure to fulfil any condition precedent but
excluding any default by the Indemnified Party which is
claiming under this clause); or
(d) a Lender receiving payments of principal in respect of any
Segment before the last day its Funding Period for any
reason, including, without limitation, prepayment under this
Agreement, but excluding default by the Agent.
Without limitation the indemnity will cover any amount determined by
the relevant Lender to be incurred by reason of the liquidation or
re-employment of deposits or other funds acquired or contracted for by
the relevant Lender to fund or maintain any Segment or amount
(including loss of margin) and by reason of the reversing or
termination of any agreement or arrangement entered into by the
relevant Lender to hedge, fix or limit its effective cost of funding
or maintaining any Segment or amount.
26. CONTROL ACCOUNTS
The accounts kept by the Agent constitute sufficient evidence, unless
proven wrong, of the amount at any time due from the Borrower under
this Agreement.
27. EXPENSES
On demand the Borrower shall reimburse:
(a) the Agent for its reasonable expenses in relation to the
preparation, execution and completion of the Transaction
Documents and any subsequent consent, agreement, approval,
waiver or amendment;
(b) each Indemnified Party for its expenses in relation to:
(i) any actual or contemplated enforcement of the
Transaction Documents, or actual or contemplated
exercise, preservation or consideration of any
rights, powers or remedies under the Transaction
Documents or in relation to the Mortgaged
Property; and
(ii) any inquiry by a Governmental Agency concerning
any Relevant Company or a transaction or activity
for which, or in connection with which, financial
accommodation or funds raised under a Transaction
Document are used or provided.
This includes, without limitation, legal costs and expenses
(including in-house lawyers charged at their usual rates) on a full
indemnity basis and travelling and out of pocket expenses, any
expenses incurred in any review or environmental audit or in
retaining consultants to evaluate matters of material concern to the
Indemnified Parties, and administrative costs including any time of
its executives (whose time and costs are to be charged at reasonable
rates).
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28. STAMP DUTIES
(a) The Borrower shall pay all stamp, transaction, registration
and similar Taxes (including fines and penalties) which may
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.
(b) Those Taxes include financial institutions duty, debits tax
or other Taxes payable by return and Taxes passed on to any
Indemnified Party by bank or financial institution.
(c) On demand the Borrower shall indemnify each Indemnified
Party against any liability resulting from delay or omission
to pay those Taxes except to the extent the liability
results from failure by the Indemnified Party to pay any Tax
after having been put in funds to do so by the Borrower.
29. SET-OFF
(a) Each of the Borrower and the Guarantors severally
irrevocably authorises each Indemnified Party to apply any
credit balance in any currency (whether or not matured) in
any of its accounts with any branch of that Indemnified
Party towards satisfaction of any sum at any time due and
payable by it to that Indemnified Party under or in relation
to any Transaction Document. No Indemnified Party is obliged
to make the application.
(b) Any Indemnified Party may effect currency exchanges
appropriate to implement that application.
30. 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 Indemnified
Parties in the Transaction Documents are in addition to, and
do not exclude or limit, any right, power or remedy provided
by law.
31. 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.
32. SURVIVAL OF REPRESENTATIONS AND INDEMNITIES
(a) All representations and warranties in any Transaction
Document survive the execution and delivery of the
Transaction Documents and the provision of advances and
accommodation.
(b) Each indemnity in any Transaction Document:
(i) is a continuing obligation;
(ii) is a separate and independent obligation; and
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(iii) survives termination or discharge of the relevant
Transaction Document.
33. MORATORIUM LEGISLATION
To the full extent permitted by law all legislation which at any time
directly or indirectly:
(a) lessens, varies or affects in favor of the Borrower or a
Guarantor any obligation under a Transaction Document; or
(b) delays, prevents or prejudicially affects the exercise by
any Indemnified Party of any right, power or remedy
conferred by any Transaction Document,
is excluded from the Transaction Documents.
34. ASSIGNMENTS
34.1 ASSIGNMENT BY BORROWER AND GUARANTOR
Neither the Borrower nor any Guarantor may assign or transfer any of
its rights or obligations under this Agreement without the prior
written consent of the Agent acting on the instructions of all
Lenders.
34.2 ASSIGNMENT BY LENDERS
A Lender may assign or transfer all or any of its rights or
obligations under the Transaction Documents at any time if:
(a) any necessary prior Authorization is obtained;
(b) the Lender gives Thermadyne Australia at least 5 Business
Days prior notice; and
(c) in the case of a transfer of obligations, the transfer is
effected by a substitution in accordance with Clause 34.3.
34.3 SUBSTITUTION CERTIFICATES
(a) If a Lender wishes to substitute a new bank or financial
institution for all or part of its participation under this
Agreement, it and the substitute shall in the Australian
Capital Territory or outside Australia execute and deliver
to the Agent four counterparts of a certificate
substantially in the form of Annexure F.
(b) On receipt of the certificate, if the Agent is satisfied
that the substitution complies with Clause 34.2, it shall
promptly:
(i) notify the Borrower;
(ii) countersign the counterparts on behalf of all
other parties to this Agreement;
(iii) enter the substitution in a register kept by it
(which will be conclusive); and
(iv) retain one counterpart and deliver the others to
the retiring Lender, the substitute Lender and the
Borrower.
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(c) When the certificate is countersigned by the Agent the
retiring Lender will be relieved of its obligations to the
extent specified in the certificate and the substitute
Lender will be bound by the Transaction Documents as stated
in the certificate.
(d) Each other party to this Agreement irrevocably authorises
the Agent to sign each certificate on its behalf.
(e) Unless the Agent otherwise agrees, no substitution may be
made while any Drawdown Notice or Selection Notice is
current.
34.4 DISCLOSURE
A Lender may disclose to a proposed assignee, transferee or
sub-participant information which relates to any Relevant Company or
was furnished in connection with the Transaction Documents if it
first obtains the consent of the Borrower (who shall not unreasonably
withhold or delay that consent).
34.5 NO INCREASED COSTS
Despite anything to the contrary in this Agreement, if a Lender
assigns its rights under this Agreement, the Borrower will not be
required to pay any net increase in the total amount of costs, Taxes,
fees or charges which is a direct consequence of the assignment and
of which the Lender or its assignee was aware or ought reasonably to
have been aware on the date of the assignment or change. For this
purpose only a substitution under Clause 34.3 (SUBSTITUTION
CERTIFICATES) will be regarded as an assignment.
35. RELATIONSHIP OF LENDERS TO AGENT
35.1 AUTHORITY
(a) Subject to Clause 35.15 each Lender irrevocably appoints the
Agent to act as its agent under the Transaction Documents.
The Agent has all powers expressly delegated to it by the
Transaction Documents together with all other powers
reasonably incidental to those powers.
(b) The Agent has no duties or responsibilities except those
expressly set out in the Transaction Documents.
35.2 INSTRUCTIONS; EXTENT OF DISCRETION
(a) In the exercise of all its rights, powers and discretions
under the Transaction Documents the Agent shall act in
accordance with the instructions (if any) of the Majority
Lenders or (where so specified) of all Lenders.
(b) In the absence of those instructions, the Agent need not act
but may act as it sees fit in the best interests of the
Lenders.
(c) Any action taken by the Agent under the Transaction
Documents binds all the Lenders.
(d) The Agent is not obliged to consult with the Lenders before
giving any consent, approval or agreement or making any
determination under the Transaction Documents except where
this Agreement expressly provides otherwise.
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35.3 NO OBLIGATION TO INVESTIGATE AUTHORITY
(a) Neither Thermadyne Australia, the Borrower nor a Guarantor
need enquire whether any instructions have been given to the
Agent by all Lenders or the Majority Lenders or as to the
terms of those instructions.
(b) As between Thermadyne Australia, the Borrower and the
Guarantors on the one hand and the Agent and the Lenders on
the other, all action taken by the Agent under the
Transaction Documents will be taken to be authorised.
35.4 AGENT NOT A FIDUCIARY
The Agent will not be taken to owe any fiduciary duty to any Lender,
any Relevant Company or any other person except as expressly provided
in a Transaction Document.
35.5 EXONERATION
Neither the Agent nor any of its respective directors, officers,
employees, agents, attorneys, Related Corporations or successors is
responsible to the Lenders for, or will be liable (whether in
negligence or on any other ground whatever) in respect of:
(a) any conduct relating to, contained in or relying on, any
loan proposal or information memorandum, any Transaction
Document or any document or agreement referred to in or
received under any Transaction Document;
(b) the value, validity, effectiveness, genuineness,
enforceability or sufficiency of any loan proposal or
information memorandum, any Transaction Document or any
other document or agreement;
(c) any failure by any Relevant Company to perform its
obligations; or
(d) any action taken or omitted to be taken by it or them under
any Transaction Document except in the case of its or their
own wilful misconduct or gross negligence.
35.6 DELEGATION
The Agent may employ agents and attorneys.
35.7 RELIANCE ON DOCUMENTS AND EXPERTS
The Agent may rely on:
(a) any document (including any facsimile transmission, telegram
or telex) believed by it to be genuine and correct; and
(b) advice and statements of lawyers, independent accountants
and other experts selected by the Agent.
35.8 NOTICE OF TRANSFER
The Agent may treat each Lender as the holder of the Lender's rights
under the Transaction Documents until the Agent has received either a
substitution certificate under this Agreement or a notice of
assignment satisfactory to the Agent.
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35.9 NOTICE OF DEFAULT
(a) The Agent will be taken not to have knowledge of the
occurrence of a Designated Event or Potential Designated
Event unless the Agent has received notice from a Lender or
Relevant Company stating that a Designated Event or
Potential Designated Event has occurred and describing it.
(b) If the Agent receives notice or the officers of the Agent
having day to day responsibility for the transaction become
aware that a Designated Event has occurred, the Agent shall
notify the Lenders, subject to Clause 35.14(c).
35.10 AGENT AS LENDER AND BANKER
(a) The Agent in its capacity as a Lender has the same rights
and powers under the Transaction Documents as any other
Lender. It may exercise them as if it were not acting as the
Agent.
(b) The Agent may engage in any kind of business with any
Relevant Company as if it were not the Agent. It may
receive consideration for services in connection with any
Transaction Document and otherwise without having to account
to the Lenders.
35.11 INDEMNITY TO AGENT
(a) The Lenders shall indemnify the Agent on demand (to the
extent not reimbursed by any Relevant Company under any
Transaction Document) ratably in accordance with their
respective Commitments against any loss, cost, liability,
expense or damage the Agent may sustain or incur directly or
indirectly under or in relation to the Transaction
Documents.
(b) No Lender is liable under this sub-clause for any of
the above to the extent that they arise from the Agent's
willful misconduct or gross negligence.
(c) The Borrower shall indemnify each Lender on demand against
any amount paid under paragraph (a). This does not limit its
liability under any other provision.
35.12 INDEPENDENT INVESTIGATION OF CREDIT
Each Lender confirms that it has made and will continue to make,
independently and without reliance on the Agent or any other Lender:
(a) its own investigations into the affairs of the Relevant
Companies; and
(b) its own analyses and decisions whether to take or not take
action under any Transaction Document.
35.13 NO MONITORING
The Agent is not required to keep itself informed as to the
compliance by any Relevant Company with any Transaction Document or
any other document or agreement or to inspect any property or book of
any Relevant Company.
35.14 INFORMATION
(a) The Agent shall provide to each Lender a copy of each
notice, report and other document which is provided to the
Agent in sufficient copies for the Lenders under the
Transaction Documents.
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(b) Thermadyne Australia, the Borrower and each Guarantor
authorises the Agent to provide any Lender with any
information concerning any Relevant Company's affairs which
may otherwise come into the possession of the Agent. The
Agent is not obliged to do so.
(c) The Agent is not obliged to disclose any information
relating to any Relevant Company if in the opinion of the
Agent (on the basis of the advice of its legal advisers)
disclosure would or might breach a law or a duty of secrecy
or confidence.
35.15 REPLACEMENT OF AGENT
(a) Subject to the appointment of a successor Agent as provided
in this clause:
(i) the Agent may resign at any time by giving not
less than 30 days notice to the Lenders and to
the Borrower; and
(ii) the Majority Lenders may remove the Agent from
office by giving not less than 30 days notice to
the Borrower and the Agent.
(b) Upon notice of resignation or removal the Majority Lenders
have the right to appoint a successor Agent approved by the
Borrower and who accepts the appointment.
(c) If no successor Agent is appointed within 30 days after
notice, the retiring Agent may on behalf of the Lenders
appoint a successor Agent who accepts the appointment.
(d) On its appointment the successor Agent will have all the
rights, powers and obligations of the retiring Agent. The
retiring Agent will be discharged from its rights, powers
and obligations.
(e) The retiring Agent shall execute and deliver all documents
or agreements which are necessary or in its opinion
desirable to transfer to the successor Agent each Security
Interest and Guarantee held by the retiring Agent in
relation to the Secured Moneys or to effect the appointment
of the successor Agent.
(f) Alter any retiring Agent's resignation or removal, this
clause will continue in effect in respect of anything done
or omitted to be done by it while it was acting as Agent.
(g) The Borrower shall not unreasonably withhold its approval of
any proposed successor Agent. It shall respond as soon as
practicable to any request for approval.
(h) The Borrower need not pay the cost of the appointment of a
successor Agent under this clause.
35.16 AMENDMENT OF TRANSACTION DOCUMENTS
Each Lender authorises the Agent to agree with the other parties to
any Transaction Document to amend any Transaction Document if:
(a) the amendment will not increase the Commitments or other
obligations of the Lenders, change the dates or amounts of
payment of any of the Secured Moneys, release any of the
Mortgaged Property or amend this sub-clause or any provision
under which the agreement or instructions of all Lenders or
the Majority Lenders are required; and
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(b) (i) the Agent is satisfied that the amendment is made
to correct a manifest error or an error of a minor
nature or that the amendment is of a formal or
technical nature only; or
(ii) the Majority Lenders have, upon request by the
Agent, notified the Agent of their agreement to
the amendment.
Each Lender will be bound by any amendment so agreed to by the Agent
as if it were party to the relevant amendment agreement.
36. PROPORTIONATE SHARING
36.1 SHARING
Whenever any Lender receives or recovers any money in respect of any
sum due from a Relevant Company under a Transaction Document in any
way (including without limitation by set-off) except through
distribution by the Agent under this Agreement:
(a) the Lender shall immediately notify the Agent;
(b) the Lender shall immediately pay that money to the Agent
(unless the Agent directs otherwise);
(c) the Agent shall treat the payment as if it were a payment by
the Relevant Company on account of all sums then payable to
the Indemnified Parties; and
(d) (i) the payment or recovery will be taken to have been
a payment for the account of the Agent and not to
the Lender for its own account, and to that extent
the liability of the Relevant Company to the
Lender will not be reduced by the recovery or
payment, other than to the extent of any
distribution received by the Lender under
paragraph (c); and
(ii) (without limiting sub-paragraph (i)) immediately
on the Lender making or becoming liable to make a
payment under paragraph (b), the Borrower shall
indemnify the Lender against the payment to the
extent that (despite sub-paragraph (i)) its
liability has been discharged by the recovery or
payment.
If the Lender is required to disgorge or unwind all or part of the
relevant recovery or payment then the other Lenders shall repay to
the Agent for the account of the Lender the amount necessary to
ensure that all the Lenders share ratably in the amount of the
recovery or payment retained. Paragraphs (c) and (d) above apply only
to the retained amount.
36.2 REFUSAL TO JOIN IN ACTION
A Lender who does not accept an invitation to join an action against
any Relevant Company or does not share in the costs of the action (in
each case having been given a reasonable opportunity to do so) is not
entitled to share in any amount so recovered.
36.3 SHARING WHEN SECURED FINANCING OR BILLS REPAID DIRECTLY
Whenever:
(a) a Xxxx or a Letter of Credit is redeemed, repaid, cancelled
or discharged otherwise than through a payment made under
this Agreement; or
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(b) the Principal Outstanding is reduced in any manner except
through a repayment or prepayment under this Agreement,
resulting in a greater reduction in the proportion by which a
Lender's participation in the Principal Outstanding is reduced than
that of the Lender whose participation in the Principal Outstanding
is reduced by the smallest proportion (except as a result of any
rounding or adjustment of amounts made by the Agent under this
Agreement):
(c) the Lender shall immediately notify the Agent;
(d) the Lender shall immediately pay to the Agent an amount
equal to the amount of the excess (unless the Agent
otherwise directs);
(e) the Lender's participation in the Principal Outstanding will
be taken to be increased by an amount equal to the payment;
(f) the Agent shall treat the payment as if it were a payment by
the Borrower on account of the Principal Outstanding; and
(g) immediately upon the Lender making or becoming liable to
make the payment under paragraph (b) the Borrower shall
indemnify that Lender against the payment as which
represents the amount of the excess.
If all or part of the relevant transaction which had that result is
subsequently rescinded or must otherwise be restored, and as a result
a Letter of Credit or the Lender's Xxxx is called upon, the Lenders
shall repay to the Agent for the account of the Lender the amount
which is necessary to ensure that all the Lenders' participations in
the Principal Outstanding have been reduced proportionately.
37. AGENT DEALINGS
Except where expressly provided otherwise:
(a) all correspondence under or in relation to the Transaction
Documents between a Lender on the one hand, and the Borrower
or a Guarantor on the other, will be addressed to the Agent;
and
(b) the Lenders and the Borrower and the Guarantors severally
agree to deal with and through the Agent in accordance with
this Agreement.
38. CONFIDENTIALITY
38.1 CONFIDENTIALITY
Subject to the following sub-clause, no Indemnified Party shall
disclose any unpublished information or documents supplied by any
Relevant Company in connection with the Transaction Documents which
are specifically indicated by any Relevant Company to be confidential
and which are not in the public domain.
38.2 PERMITTED DISCLOSURE
An Indemnified Party may disclose any confidential information or
documents:
(a) in enforcing a Transaction Document or in a proceeding
arising out of or in connection with a Transaction Document
or to the extent that disclosure is regarded by the
Indemnified Party as necessary to protect its interests;
85
Page 70
(b) if required under a binding order of a Governmental Agency
or any procedure for discovery in any proceedings;
(c) if required under any law or any administrative guideline,
directive, request or policy whether or not having the force
of law and, if not having the force of law, the observance
of which is in accordance with the practice of responsible
bankers or financial institutions similarly situated;
(d) as required or permitted by any Transaction Document;
(e) to its legal advisers and its consultants; or
(f) with the prior written consent of the Borrower.
38.3 SURVIVAL OF OBLIGATION
This clause survives the termination of this Agreement.
39. 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 deemed to be duly given or made:
(i) (in the case of delivery in person or by post or
facsimile transmission) when delivered, received
or left at the address of the recipient shown in
this Agreement or to any other address which it
may have notified the sender; or
(ii) (in the case of a telex) on receipt by the sender
of the answerback code of the recipient at the end
of transmission,
but if delivery or receipt is on a day on which business is
not generally carried on in the place to which the
communication is sent or is later than 4 pm (local time), it
will be taken to have been duly given or made at the
commencement of business on the next day on which business
is generally carried on in that place.
40. AUTHORISED OFFICERS
Each of Thermadyne Australia, the Borrower and the Guarantors
irrevocably authorises each Indemnified Party to rely on a
certificate by any person purporting to be its director or secretary
as to the identity and signatures of its Authorised Officers. Each of
Thermadyne Australia, the Borrower and the Guarantors warrants that
those persons have been authorised to give notices and communications
under or in connection with the Transaction Documents.
Each Guarantor and Thermadyne Australia warrant that each Authorised
Officer of the Borrower is authorised to sign Drawdown and Selection
Notices on behalf of each Guarantor and Thermadyne Australia
respectively.
86
Page 71
41. GOVERNING LAW AND JURISDICTION
This Agreement is governed by the laws of Victoria. Each of
Thermadyne Australia, the Borrower and the Guarantors submits to the
non-exclusive jurisdiction of courts exercising jurisdiction there.
42. COUNTERPARTS
This Agreement may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
43. ACKNOWLEDGEMENT
Each of Thermadyne Australia, the Borrower and each Guarantor
confirms that:
(a) it has not entered into this Agreement in reliance on, or as
a result of, any conduct of any kind of or on behalf of any
Indemnified Party or any Related Corporation of any
Indemnified Party (including, without limitation, any
advice, warranty, representation or undertaking); and
(b) neither any Indemnified Party nor any Related Corporation of
any Indemnified Party 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 any Indemnified Party or
Related Corporation.
44. CONSENTS AND OPINIONS
Except where expressly stated any Indemnified Party may give or
withhold, or give conditionally, approvals and consents (including in
relation to any Business Plan), may be satisfied or unsatisfied, may
form opinions, and may exercise rights, powers and remedies at its
absolute discretion.
45. SECURITY DOCUMENTS
Despite anything to the contrary in any Security Document (but
subject to any law which applies notwithstanding an agreement to the
contrary), the Agent will not be required to release or discharge any
Security Document before the Secured Moneys have been fully and
finally paid, repaid and discharged and all the Commitments have been
cancelled.
EXECUTED as an agreement.
87
SCHEDULE 1
LENDERS
PART A - TERM FACILITY
------- -------------
1 2 3
LENDER TERM COMMITMENT ADDRESS FOR
(A$) CORRESPONDENCE
1. Bankers Trust Australia 15,000,000 Xxxxx 00,
Limited The Chifley Tower
(ACN 000 000 000) 0 Xxxxxxx Xxxxxx
Xxxxxx XXX 0000
Fax: 000 0000
Attention: Manager,
Operations - Corporate
Finance
PART B - REVOLVING CREDIT FACILITY
------- -------------------------
1 2 3
LENDER REVOLVING CREDIT ADDRESS FOR
COMMITMENT CORRESPONDENCE
(A$)
1. Bankers Trust Australia 22,000,000 Xxxxx 00,
Limited The Chifley Tower
(ACN 000 000 000) 0 Xxxxxxx Xxxxxx
Xxxxxx XXX 0000
Fax: 000 0000
Attention: Manager,
Operations - Corporate
Finance
88
ANNEXURE A
DRAWDOWN NOTICE
To: BT Management Services Pty Limited
COMWELD GROUP PTY LIMITED - DRAWDOWN NOTICE NO. [*]
We refer to the Syndicated Credit Agreement dated 3 August 1989 and amended and
restated on [*] 1996 (the CREDIT AGREEMENT).
Under Clause 6 of the Credit Agreement:
(1) we give you irrevocable notice that we wish to draw under [Facility
or Facilities] on [*] 19[*] (the DRAWDOWN DATE); [NOTE: DATE IS TO
BE A BUSINESS DAY.]
(2) the total principal amount to be drawn is [*];
[NOTE: AMOUNT TO COMPLY WITH THE LIMITS IN CLAUSE 2 AND IN THE CASE
OF THE LC FACILITY, CLAUSE 13.4.]
(3) particulars of each Segment of each Facility are as follows:
FACILITY PRINCIPAL AMOUNT FUNDING PERIOD
[NOTE: AMOUNTS TO COMPLY WITH CLAUSE 7 AND LENGTH OF FUNDING PERIOD
TO COMPLY WITH CLAUSE 9.]
(4) we request that the proceeds be remitted to account number [*] at
[*] [in the case of the [*] Facility, and to account number [*] at
[*] in the case of the [*] Facility];
(5) we represent and warrant on behalf of the Borrower, Thermadyne
Australia and each Guarantor that:
(a) [(except as disclosed in paragraph (c)] the
representations and warranties in the Credit 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 Designated
Event [or Potential Designated Event] 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 [*];]
[NOTE: INCLUSION OF A STATEMENT UNDER PARAGRAPH (C) WILL NOT
PREJUDICE THE CONDITIONS PRECEDENT IN THE AGREEMENT]
89
Page 2
**[(6) details of the Beneficiary and the Secured Financing with
respect to the Segment[s] of the LC Facility are as
follows:
Beneficiary:
----------------------------------------
Nature of Secured Financing:
-----------------------
Maturity:
----------------------------------------
Amount:
----------------------------------------
***[(7) we request that you prepare, complete and sign the Bills to be
comprised in [each/the] Segment of the Xxxx Facility on our behalf
under Clause [*].]
Definitions in the Credit Agreement apply when used in this Drawdown Notice.
On behalf of
COMWELD GROUP PTY LIMITED
By: [Authorised Officer]
DATED 19[*]
NOTE:
** USE IN LC FACILITY.
*** USE IN XXXX FACILITY.
90
ANNEXURE B
SELECTION NOTICE
To: BT Management Services Pty Limited
COMWELD GROUP PTY LIMITED - SELECTION NOTICE NO. [*]
We refer to the Syndicated Credit Agreement dated 3 August 1989 and amended and
restated on [*] 1996 (the CREDIT AGREEMENT).
Under Clause 8 of the Credit Agreement:
(1) we give you irrevocable notice that we wish to draw or continue [a
Segment/Segments] under [Facility or Facilities] on [*] 19[*] (the
SELECTION DATE) [as a switch [in the case of [*] Facility] from [*]
Facility]; [NOTE: THE SELECTION DATE IS TO BE A BUSINESS DAY.]
(2) particulars of [each/the] Segment [of each Facility] requested are
as follows:
FACILITY PRINCIPAL AMOUNT FUNDING PERIOD
[*] Facility $[*]
[*] Facility $[*] [*]];
[NOTE: AMOUNTS TO COMPLY WITH CLAUSE 7 AND LENGTH OF FUNDING PERIOD
TO COMPLY WITH CLAUSE 9.]
(3) we request that the proceeds be remitted to account number [*] at
[*] [in the case of the [*] Facility, and to account number [*] at
[*] in the case of the [*] Facility];]
[NOTE: TO BE COMPLETED ONLY IF FUNDS NOT REQUIRED IN PAYMENT OF
AMOUNT DUE UNDER TRANSACTION DOCUMENTS.]
(4) we represent and warrant on behalf of the Borrower, Thermadyne
Australia and each Guarantor that:
(a) [(except as disclosed in paragraph (c)] the
representations and warranties in the Credit Agreement
are true as though they had been made at the date of this
Selection Notice and the Selection Date specified above
in respect of the facts and circumstances then
subsisting; [and]
(b) [except as disclosed in paragraph (c)] no Designated
Event [or Potential Designated Event] is subsisting or
will result from the drawing or continuation of the
[Segment/Segments]; [and]
[(c) details of the exceptions to paragraphs (a) and (b) are
as follows;
([*]; and)
(we [have taken/propose] the following remedial action:)
([*]; [and])
91
Page 2
*[(5) details of the relevant Beneficiary and the Secured Financing with
respect to the Segment of the LC Facility are as follows:
Beneficiary:
----------------------------------------
Nature of Secured Financing:
-----------------------
Maturity:
----------------------------------------
Amount:
----------------------------------------
**[(6) we request that you prepare, complete and sign the Bills to be
comprised in [each/the] Segment [of the Xxxx Facility on our behalf
under Clause [*] ].]
Definitions in the Credit Agreement apply in this Selection Notice.
On behalf of
COMWELD GROUP PTY LIMITED
By: [Authorised Officer]
DATED 19[*]
NOTE: * USE IN LC FACILITY.
** USE IN XXXX FACILITY.
92
ANNEXURE C
LETTER OF CREDIT AUTHORIZATION
(Clause 13.1(c))
[FACSIMILE TRANSMISSION/TELEX]
To: BT Management Services Pty Limited
[ADDRESS]
Attention:
Fax No:
Telex No:
COMWELD GROUP PTY LIMITED
SYNDICATED CREDIT AGREEMENT
We refer to your [facsimile/telex] dated [*] notifying us that Comweld Group
Pty Limited has requested a Segment of the LC Facility pursuant to a
[Drawdown/Selection] Notice dated [*].
In accordance with Clause [13].1(c) of the Credit Agreement, we authorize you
as Agent to execute and issue on or after the Accommodation Date specified in
that Notice a Letter of Credit in Australian Dollars for our Share of the face
amount requested by the Borrower.
-------------------------------------------
On behalf of [Lender]
Authorized Officer
93
ANNEXURE D
FORM OF LETTER OF CREDIT
[DATE]
TO: [NAME AND ADDRESS OF BENEFICIARY]
Dear Sirs
The Banks listed in the Schedule (the Banks) have pleasure in detailing the
particulars of a several Letter of Credit issued in your favour.
----------------------------------------
IRREVOCABLE SEVERAL STANDBY LETTER OF CREDIT NO. [*]
DATED 199[*]
----------------------------------------
ON ACCOUNT OF: Comweld Group Pty Limited (the BORROWER)
BENEFICIARY: [*] (the BENEFICIARY)
TOTAL AMOUNT: Total maximum limit of liability A$[*] (divided
between the Banks in the shares (the SHARES) listed
in the Schedule).
EXPIRY DATE: [*] 19[*]
AVAILABLE AT: [NAME OF AGENT] (the AGENT), [ADDRESS]
BY DRAFTS ON: Each of the Banks in the proportions of their
respective Shares.
PAYABLE AT: Sight.
ENFACED: "Drawn under (NAME OF ISSUER] Several Standby Letter
of Credit No. [*] dated [*] 19[*]"
RETURNABLE TO: The Agent, [ADDRESS].
ISSUED IN Details of SECURED FINANCING] (the SECURED
CONNECTION WITH: FINANCING)
Drafts drawn under this Letter of Credit must be payable to the credit of an
account in the name of the Beneficiary, must be delivered to the Agent at the
address at which this Letter of Credit is expressed to be available at or
before 3 pm ([insert place of Agent] time) on the expiry date specified above
and must be accompanied by a declaration stating that:
(a) the declarants are two officers of the Beneficiary, making the
declaration on behalf of the Beneficiary;
(b) the declarants have authority to make the declaration on behalf of
the Beneficiary;
94
Page 2
(c) the declaration is made under Letter of Credit No. [*];
(d) the amount claimed is not more than the maximum amount available
under that Letter of Credit;
(e) the amount claimed represents an amount or amounts remaining unpaid
to the Beneficiary in respect of the Secured Financing in
accordance with arrangements made between the Beneficiary and the
Borrower; and
(f) demand for payment of that amount has been made by the Beneficiary
on the Borrower and that demand remains unsatisfied.
The amount of this Letter of Credit will automatically reduce by the amount of
all drawings under it.
There is no responsibility on the Agent or the Banks to investigate the
authenticity of the declarations or the declarants' capacity or entitlement to
make the declaration.
Each Bank severally engages with the Beneficiary that drafts drawn on it in
compliance with this Letter of Credit in respect of its Share will be paid by
that Bank on presentation of the draft to the Agent.
The Agent is not responsible for the performance of any other Bank. No Bank is
responsible for the performance of any other Bank or the Agent.
This Letter of Credit is subject to the Uniform Customs and Practice for
Documentary Credits (1993 Revision) International Chamber of Commerce
Publication No. 500.
On behalf of [NAME OF AGENT] as Agent for the Banks:
------------------------- -------------------------
Authorised Signatory Authorised Signatory
SCHEDULE
THE BANKS SHARES - %
95
ANNEXURE E
FINANCIAL INDEBTEDNESS
(CLAUSE 19.1(T))
1. Debt of Borrower under the International Trade Enhancement Scheme
in an aggregate principal amount of A$463,500.
2. Debt of Borrower's Philippine Subsidiary, Philippine Welding
Equipment, Inc., to certain Philippine banks in an aggregate
principal amount of A$1,961,733.17.
96
ANNEXURE F
SUBSTITUTION CERTIFICATE
for a Participation of [A]$[*]
relating to the Syndicated Credit Agreement (the CREDIT AGREEMENT) dated 3
August 1989 and amended and restated on [*] 1996 between Comweld Group Pty
Limited as Borrower, Thermadyne Australia Pty Limited, the Guarantors named in
the Facility Agreement, the Lenders named in the Credit Agreement and BT
Management Services Pty Limited as Agent between:
1. [NAME] (the SUBSTITUTE UNDER);
2. [NAME] (the RETIRING UNDER); and
3. [*] (the AGENT) for itself and on behalf of the other parties to
the Credit Agreement.
IT IS AGREED as follows.
1. DEFINITIONS
1.1 In this Certificate terms defined in the Credit Agreement have the
same meanings and the following terms shall have the following
meanings unless the context otherwise requires.
Substituted Participation means the Commitment of the Retiring
Lender [and the participation in the Principal Outstanding drawn
under that Commitment] [in respect of the following Segments:]
[NOTE: TO BE INSERTED IF ONLY PART OF PARTICIPATION IS BEING
SUBSTITUTED.]
DATE FACILITY FUNDING PERIOD AMOUNT OF
PARTICIPATION
amounting to principal amount of $[*].
SUBSTITUTION DATE means the date of countersignature of this
Certificate by the Agent [or [*] whichever is the later]. [NOTE:
INSERT ANY OTHER DATE OR DATES AS APPROPRIATE.]
1.2 Clause 1.2 of the Credit Agreement applies to this Certificate.
2. SUBSTITUTION
2.1 RELEASE OF RETIRING LENDER
The Retiring Lender will cease to have its rights and obligations
as a Lender under the Transaction Documents [relating to the
Substituted Participation] [NOTE: INSERT IF ONLY PART OF COMMITMENT
ASSUMED.] with effect from and including the Substitution Date. It
will remain entitled to and bound by rights and obligations which
accrue up to the Substitution Date.
2.2 ASSUMPTION BY SUBSTITUTE LENDER
With effect from and including the Substitution Date:
97
Page 2
(a) the Substitute Lender and each of the parties to the
Credit Agreement] will assume obligations towards each
other and acquire rights against each other which are
identical to the rights and obligations which cease under
Clause 2.1, except to the extent the obligations so
assumed and rights so acquired relate to the identity of
or location of the Substitute Lender and not to the
identity of or location of the retiring Lender; and
(b) the Substitute Lender will be taken to be a party to the
Credit Agreement as a Lender with a Commitment [and
participation in the Principal Outstanding] equal to the
Substituted Participation.
3. INDEPENDENT ASSESSMENT BY SUBSTITUTE LENDER
Without limiting the generality of Clause 2 the Substitute Lender
agrees as specified in Clause [34.5] (EXONERATION) and [34.12]
(INDEPENDENT INVESTIGATION OF CREDIT) of the Credit Agreement.
Those clauses apply (subject to any agreement to the contrary) as
if references to the Agent included the Retiring Lender. This
certificate is a Transaction Document for the purposes of the
Credit Agreement.
4. PAYMENTS
From and including the Substitution Date the Agent shall make all
payments due under the Transaction Documents in relation to the
Substituted Participation to the Substitute Lender. The Retiring
Lender and the Substitute Lender shall make directly between
themselves the payments and adjustments which they agree with
respect to accrued interest, fees, costs and other amounts
attributable to the Substituted Participation before the
Substitution Date.
5. OUTSTANDING BILLS
(a) For the purpose of the Credit Agreement the Substitute
Lender will be taken to have accepted any outstanding
Bills accepted by the Retiring Lender included in the
Substituted Participation. The Substitute Lender shall
indemnify unconditionally the Retiring Lender against any
liability of the Retiring Lender as acceptor of the
Bills.
(b) The indemnity of the Borrower under Clause [15.8] of the
Credit Agreement extends to any liability of the
Substitute Lender under this clause.
6. LETTERS OF CREDIT
(a) For the purpose of the Credit Agreement any outstanding
several Letters of Credit issued for the account of the
Retiring Lender included in the Substituted Participation
will be taken to have been issued for the account of the
Substitute Lender in the place of the Retiring Lender.
The Substitute Lender accordingly shall indemnify
unconditionally the Retiring Lender against any liability
of the Retiring Lender as issuer of the Letters of
Credit.
(b) The indemnity of the Borrower under Clause [13.9] of the
Credit Agreement extends to any liability of the
Substitute Lender under this clause.
7. WARRANTY
The Retiring Lender and the Substitute Lender jointly and severally
represent and warrant to the other parties that Clause [34.2(b)] of
the Credit Agreement has been complied with in relation to the
Substitute Lender.
98
Page 3
8. NOTICES
For the purpose of the Credit Agreement, the Lending Office and
address for correspondence of the Substitute Lender is the address
set out below.
[9. REGISTRATION FEE
A registration fee of [*]$[*] is payable to the Agent on delivery
of this Certificate to the Agent.]
10. LAW
This Certificate is governed by the laws of [*].
Signed by the authorized representatives of the parties [in the Australian
Capital Territory/[insert place outside of Australia]]. [NOTE: BE CAREFUL ABOUT
DELETING THESE WORDS AS THEY ARE DESIGNED TO ENSURE THAT THE SUBSTITUTION
CERTIFICATE IS NOT SIGNED IN A PLACE WHERE IT WILL BE A DUTIABLE INSTRUMENT.]
THE RETIRING LENDER
[NAME]
by:
--------------------------------
THE SUBSTITUTE LENDER
[NAME]
by:
--------------------------------
Lending Office [and address for correspondence]:
[Telex No.]
[Address for correspondence:] [NOTE: IF DIFFERENT FROM LENDING OFFICE]
Countersigned by an authorized representative of the Agent for itself and for
the other parties to the Credit Agreement.
THE AGENT
[NAME]
by: ___________________________________
DATED 19[*]
99
ANNEXURE G
EXECUTIVE CONTRACT
(CLAUSE 20.1(S))
100
EMPLOYMENT AGREEMENT
This employment agreement ("this Agreement") is made and entered
into as of January ___, 1996 by and between Comweld Group Pty Ltd., a
corporation organized under the laws of the State of Victoria (ACN 007226815)
("Employer"), and Xxxxxx Klanjscek ("Employee").
R E C I T A L S:
A. Employer has determined that it would be in Employer's
best interests to retain the services of Employee upon the terms set forth
herein; and
B. Employee desires to be employed by Employer and to
appropriately memorialize the terms and conditions of such employment.
Employee and Employer hereby agree as follows:
1. Basic Employment Provisions.
(a) Employment and Term. Employer hereby agrees to
employ Employee ("the Employment") as Managing Director ("the
Position") and Employee agrees to be employed by Employer in such
Position for a period ending on the _______ day of January, 1998
("the Termination Date"), unless terminated earlier as provided
herein ("the Employment Period").
(b) Duties. During the Employment Period, Employee
shall be subject to the direction and supervision of his immediate
supervisor and shall have those duties and responsibilities which
are assigned to Employee during the Employment Period by such
supervisor consistent with the Position. During the Employment
Period, the parties expressly acknowledge and agree that Employee
shall devote all of Employee's business time and attention to the
transaction of Employer's businesses as is reasonably necessary to
discharge Employee's responsibilities hereunder. Employee agrees to
perform faithfully the duties assigned to the best of Employee's
ability.
2. Compensation.
(a) Salary. During the Employment Period, Employer
shall pay to Employee an annual salary of Three Hundred Thirty-Five
Thousand Australian Dollars (A$335,000) ("the Base Salary"). The
Base Salary shall accrue and be payable to Employee in accordance
with the payroll practices of Employer in effect from time to time
but no less frequently than monthly. All such payments shall be
subject to deduction and withholding authorized or required by
applicable law.
101
(b) Fringe Benefits. During the Employment Period,
the Employee shall be entitled to participate in such retirement
and other benefit plans and programs which are available to
executive level employees of Employer who are similarly situated,
subject to Employer's policies with respect to all of such
retirement and other plans and programs; provided however, that
except as expressly set forth herein, Employer shall not be
obligated to institute or maintain any particular retirement or
other plan or program or any aspect thereof.
3. Termination.
(a) Death or Disability. The Employment of
Employee under this Agreement shall terminate automatically upon
the death or total disability of Employee. For purposes of this
Agreement, "total disability" shall be deemed to have occurred if
Employee shall have been unable to perform the assigned duties due
to mental or physical incapacity for a period of time designated by
Employer in accordance with Employer's policy concerning
disability.
(b) Cause. Employer may terminate the Employment of
Employee under this Agreement for Cause. For purposes of this
Agreement, "Cause" shall be deemed to be fraud, dishonesty,
competition with Employer, unauthorized use of any of Employer's
trade secrets or Confidential Information (as hereinafter defined)
or repeated failure to properly perform the duties assigned to
Employee, in the reasonable judgment of Employer.
(c) Without Cause. Employer may terminate the
Employment of Employee under this Agreement without Cause at any
time, subject to the continuing rights of Employee pursuant to
Section 4(c) below.
(d) Termination by Employee. Employee may terminate
this agreement at any time upon fourteen (14) days written notice
to Employer.
4. Compensation Upon Termination.
(a) Death or Disability. If the Employment of
Employee under this Agreement is terminated pursuant to the
provisions of Section 3(a) above, this Agreement shall terminate,
and no further compensation shall be payable to Employee except
that Employee or Employee's estate, heirs, beneficiaries or legal
guardian, as applicable, shall be entitled, in addition to any
other benefits specifically provided to them or Employee under any
benefit plan, to receive Employee's then current Base Salary until
the Termination Date.
(b) Termination for Cause or Voluntary Termination
by Employee. If the Employment of Employee under this Agreement is
terminated for Cause pursuant to the provisions of Section 3(b)
above or if Employee voluntarily terminates his Employment under
this Agreement pursuant to the provisions of
-2-
102
Section 3(d) above, no further compensation shall be paid to
Employee after the date of such termination.
(c) Termination Without Cause. If the Employment of
Employee under this Agreement is terminated pursuant to Section
3(c) above, Employee shall not be entitled to continue to receive
any of the benefits under Sections 2(b) through (e) above, but
shall be entitled to receive from Employer the greater of (i) the
Base Salary and (ii) an amount equal to the product of (x) two
divide by 52 multiplied by (y) the Base Salary and multiplied by
(c) the number of complete years Employee had been employed on a
full-time basis by Employer prior to such termination, such amount
to be paid in substantially equal installments over a period of one
year from the date of termination and in accordance with the
payroll practices of Employer.
5. Confidential Information.
(a) Non-Disclosure. During the Employment Period
or at any time thereafter, irrespective of the time, manner or
cause of the terminatIon of this Agreement, Employee will not
directly or indirectly reveal, divulge, disclose or communicate to
any person or entity, other than authorized officers, directors and
employees of Employer, in any manner whatsoever, any Confidential
Information (as hereinafter defined) of Employer without Employer's
prior written consent.
(b) Definition. As used herein, "Confidential
Information" means information disclosed to or known by Employee as
a direct or indirect consequence of or through the Employment
pertaining to Employer or its respective businesses, products and
practices which information is not generally known to the public;
provided, however, Confidential Information shall not include under
any circumstances any information with respect to the foregoing
matters which is (i) available to the public from a source other
than Employee or persons who are under similar obligations of
confidentiality to Employer or its affiliates, (ii) obtained by
Employee from a third party not under a similar obligation of
confidentiality to Employer or its affiliates, (iii) required to be
disclosed by any court process or any government or agency or
department of any government, or (iv) the subject of a written
waiver executed by Employer for the benefit of Employee.
(c) Return of Property. Upon termination of the
Employment, Employee will surrender to Employer all Confidential
Information, including without limitation, all lists, charts,
schedules, reports, financial statements, books and records of
Employer, and all copies thereof, and all other tangible property
belonging to Employer.
6. Invalid Provisions. If any provision of this Agreement is
held to be illegal, invalid or unenforceable under present or future laws, such
provision shall be fully
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103
severable, and this Agreement shall be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part of this
Agreement; the remaining provisions of this Agreement shall remain in full
force and effect and shall not be affected by the illegal, invalid or
Unenforceable provision or by its severance from this Agreement. In lieu of
each such illegal, invalid or unenforceable provision, there shall be added
automatically as part of this Agreement a provision as similar in terms to such
illegal, invalId or unenforceable provision as may be possible ad be legal,
valid and enforceable.
7. Entire Agreement: Amendments. This Agreement contains
the entire agreement of Employer and Employee with respect to the subject
matter hereof and supersedes all prior agreements and understandings, if any,
relating to the subject matter hereof. This Agreement may be amended in whole
or in part only by an instrument in writing setting forth the particulars of
such amendment and duly executed by an executive officer of Employer and by
Employee.
8. Waiver. No delay or omission by and party hereto to
exercise any right or power hereunder shall impair such right or power or be
construed as a waiver thereof. A waiver by either party hereto of any of the
covenants to be performed by the other party or any breach thereof shall not be
construed to be a waiver of any succeeding breach thereof or of any other
covenant herein contained. Except as otherwise expressly set forth herein; all
remedies provided for in this Agreement shall be cumulative and in addition to
and not in lieu of any other remedies available to either party at law, in
equity or otherwise.
9. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall constitute an original, and all of which
together shall constitute one and the same agreement.
10. Governing Law, This Agreement shall be construed and
enforced according to the laws of the State of Victoria.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date first above written.
EMPLOYER: EMPLOYEE:
COMWELD GROUP PTY LTD
(ACN 007226815)
By
-------------------------------- --------------------------------
Xxxxxx Klanjscek
Its
--------------------------------
-4-
104
_________
| |
| ANNEX A |
|_________|
_________
| |
| CIGWELD |
|_________|
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NAME BONUS STOCK
OPPORTUNITY OPTION
PROPOSAL PROPOSALS
--------------------------------------------------------------------------------
Xxxxxx Klanjscek 50% 15,000
Xxxxxxxx Xxxxxxxxxx 25% 7,500
Xxxxxx Xxxxxx 15% 1,000
Xxxxxxx Xxxxxxx 15% 1,000
Xxxxxx Xxxxx 25% 3,000
Xxxx Xxxxxx 25% 3,000
Xxxxxx Xxxxxxxxx 25% 3,000
Xxxx Xxxxxxx 25% 1,000
Xxxxxx Xxxxxxx 25% 1,000
TOTAL 35,500
================================================================================
