RECEIVABLES FINANCE AGREEMENT Standard Terms and Conditions for the Purchase of Debts on a Recourse Basis
Standard
Terms and Conditions for the Purchase of Debts on a Recourse Basis
THIS AGREEMENT is made on
August 3, 2010 between: -
1.
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Commonwealth Bank of Australia
ACN 123 123 124, a company deemed to be incorporated under the
Corporations Law of the Australian Capital Territory, of 00 Xxxxxx Xxxxx,
Xxxxxx, (which, together with its successors and assigns from time to time
is herein described as the “Bank”),
and
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2.
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the
party named as the Client
at paragraph 1 of the
Schedule.
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WHEREAS:-
A.
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The
Client has requested that the Bank enter into certain arrangements whereby
the Bank may
purchase Debts of the Client from time to
time.
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B.
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The
parties have agreed that where the Bank accepts Offers to purchase Debts
from the Client, the following terms and conditions shall
apply.
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NOW IT IS AGREED as follows:
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1.
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Definitions
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1.1
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In
this Agreement: -
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“Account Report” means the
information agreed to be provided by the Bank to the Client on a
monthly basis, the details of which are set out at paragraph 11 of the
Schedule;
“Accrued Discount” means the
amount of Discount accrued at any time which has not at that time been debited
to Funds in Use;
“Assignment” means the purchase
by the Bank of any Debt pursuant to this Agreement;
“Assigned” has a corresponding
meaning;
“Assignment Notice” means a
notice prepared by the Bank, or by the Client at the direction of the Bank, in
such form as the Bank may determine, for the purposes of notifying Debtors of
Assignments;
“Business Day” means a day
which is not a Saturday, a Sunday, a public holiday or a bank holiday in the
place where an act is to be done;
“Client Availability” means the
amount available to the Client at any time for a Prepayment, calculated in
accordance with Clause 7.3;
"Corporations Law" means the
Corporations Xxx 0000 (Cth);
“Cut-Off Date” means, for any
month, the date by which the Client must forward to the Bank all information and
documents for the posting of Debtors’ ledgers and the dispatch of Debtors’
Statements for that month, which date shall be either the last Business Day of
that month, or such other day (as set out at paragraph 10 of the Schedule) as
the Bank may allow;
“Debt” means, as the context
requires, either: -
(a) the
obligation of a Debtor to make payment in respect of a Sale, or
(b) the
amount due (or which is to become due) under a Sale, or
both (a)
and (b).
“Debtor” means the person who
has the obligation of payment under a Sale;
“Debtor Concentration Limits”
means the amounts equivalent to the percentages of Total Outstandings at any
time as advised to the Client by the Bank in writing from time to
time;
“Debtor Concentration Retention”
means an amount of Retention equivalent to 100% of the value of so much
of the Approved Debts owing at any time by a Debtor which exceeds the Debtor
Concentration Limit for that Debtor. Save in respect of the Commonwealth of
Australia, in determining Debtor Concentration Retention, the Bank may aggregate
the Approved Debts owing by a Debtor and any Related Person or Entity
thereof;
“Debtor Statements” means
statements of account for Debtors showing details of payments and outstanding
Debts;
"Disclosed" in relation to a
Purchased Debt, means that the bank may communicate to the Debtor notice of
Assignment at any time;
“Discount” means the amount
accruing at the Discount Rate on a daily basis on the debit balance from time to
time of Funds in Use;
2
“Discount Rate” means a
percentage rate equivalent to the Bank’s published Overdraft Index Rate as
varied from time to time (or any rate charged by the Bank in place of the
Overdraft Index Rate), plus the Margin;
"Effective Date" means, in
relation to a Purchased Debt, the date on which that Purchased Debt was Assigned
or purported to be Assigned to the Bank.
"Funding Limit” means a limit
placed by the Bank from time to time on the amount of aggregate Approved Debts
due and owing by any Debtor;
“Funds in Use” means the
account of the Client with the Bank maintained for the purposes of this
Agreement;
“Invoice” includes any document
or schedule which is, whether by trade, custom or agreement, evidence of a
recoverable Debt owed to the Client;
"Line Fee" is a fee equivalent
to a percentage per annum of the facility limit advised to the
Client;
“Margin” means the percentage
rate as set at paragraph 7 of the Schedule;
“Matured Debt” means a
Purchased Debt (whether an Approved Debt or an Unapproved Debt) for which a
payment, credit note or similar item has been received, and such payment, credit
note or similar item has been reconciled against invoices of the
Client;
“Non-Disclosed" in relation to
a Purchased Debt means, subject to this Agreement, the Bank will not communicate
to the Debtor notice of Assignment;
“Offer” means an offer to the
Bank by the Client that the Bank purchase Debts, made in accordance with Clause
2, and “Offered” and
"Offering" have
corresponding meanings;
"Offer Letter" means the offer
letter dated July 8, 2010 made between the Bank and the
Client with respect to the receivables finance facility being the subject of
this Agreement;
“Offer Statement” means a
document prepared by the Client for the purposes of an Offer, containing such
information as the Bank may request, and delivered to the Bank in such manner as
the Bank may request;
"Permitted Financial
Indebtedness" means any financial indebtedness which is not restricted by
the Offer Letter;
3
“Prepayment” means a payment
by the Bank to the Client or at the Client’s direction under the terms of this
Agreement;
"Proceeds Account" means the
account or accounts opened under Clause 11;
“Proscribed Person” means a
person who appears to the Bank to be:
(a)
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a
proscribed person or entity under the Charter of the United Nations
Xxx 0000 (Cth);
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(b)
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in
breach of the laws of any jurisdiction relating to money-laundering or
counterterrorism;
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(c)
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a
person with whom dealings are proscribed by the government of a regulatory
authority of any jurisdiction;
or
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(d)
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acting
on behalf of, or for the benefit of, a person referred to in (a-c)
above.
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“Purchase Price” means, in
relation to a Purchased Debt, the amount of that Debt, less the Service Fee for
that Debt;
“Purchased Debt” means a Debt
which has been Assigned to the Bank pursuant to this Agreement or a Debt
purported to be Assigned to the Bank pursuant to this Agreement but which
Assignment was ineffective for any reason;
“Related Body Corporate”
means
(a)
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in
respect of the Client, each of:
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(i)
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Xxxxxx
Highland Group Inc.;
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(ii)
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Xxxxxx
Highland (APAC) Pty Limited;
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(iii)
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each
Subsidiary of Xxxxxx Highland (APAC) Pty Limited that is incorporated in
Australia, New Zealand or the United States of America;
and
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(iv)
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any
direct or indirect holding company or holding entity of Xxxxxx Highland
(APAC) Pty Limited; and
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(b)
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in
respect of any other party or a Debtor, has the same meaning as in the
Corporations
Law.
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“Related Person or Entity” in
the case of a body corporate, includes any director, secretary, shareholder or
officer thereof, as well as any Related Body Corporate; and, in the case of an
individual, any body corporate of which that individual is a director,
secretary, shareholder or officer;
4
“Retention” means the amount
which is the aggregate of the following: -
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(a)
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the
amounts determined by applying certain percentages to the amounts of
Purchased Debts (as classified and categorised pursuant to this Agreement)
as set out at paragraph 6 of the
Schedule;
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(b)
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Accrued
Discount;
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(c)
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Special
User Retention; and
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(d)
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Debtor
Concentration Retention.
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“Sale” means a concluded
transaction made upon credit terms between the Client and any of its Debtors for
the provision of goods or equipment of any description, or the provision of
services, represented by an Invoice, where the amount payable in respect of
which is due, or will be due, under the usual terms and conditions of trading
for the Client, or such terms and conditions as are approved by the
Bank;
“Schedule” means the Schedule
to this Agreement;
“Service Fees” means the
amounts charged by the Bank to Funds in Use as consideration for Assignments
calculated in accordance with clause 4.2;
“Special User Retention” means
a fixed amount (as set out in paragraph 5 of the schedule) agreed between the
Client and the Bank for the purposes of securing contingent liabilities, or for
such other purposes as may be agreed, which amount shall be included in the
calculation of Retention;
“Subsidiary” has the same
meaning as in the Corporations Law;
“Total Approved Debts” means
the aggregate amount of Approved Debts owing at any time; and
“Total Outstandings” means, at
any time, the total sum of Purchased Debts which remains unpaid.
1.2
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References
to the singular include the plural and vice versa, and words denoting
personsinclude:
-
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(a)
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bodies
corporate and firms;
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5
(b)
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assigns,
executors, successors or
administrators.
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1.3
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Clauses
1.1 and 1.2 apply unless the contrary intention
permits.
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1.4
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References
to legislation include regulations made under any legislation, and include
anyconsolidation
of, amendment to, re-enactment or replacement of, any Act or
regulations.
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1.5
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Headings
do not affect the interpretation of this
Agreement.
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1.6
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The
Schedule forms part of this
Agreement.
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2.
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Offers
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2.1
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The
Client may make Offers at any time during the currency of this Agreement,
bydelivering
an Offer Statement to the Bank, in such form and in such manner as the
Bank may direct.
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2.2
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Every
Offer made by a Client evidenced by an Offer Statement will be made on the
termsspecified
in this Agreement.
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2.3
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An
Offer Statement shall be constituted of separate Offers for each of the
Debts evidencedtherein.
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3.
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Acceptance
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3.1
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Assignment
shall be signified by the entry of particulars of Debts in the books of
the Bank,following
the receipt of an Offer Statement.
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3.2
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All
of the Client's right, title and interest to Purchased Debts will pass to
the Bank uponAssignment.
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3.3
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(a)
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Subject
to Clause 3.3(b), the Bank retains the right not to purchase any Debt
Offered. Any Debt not so purchased will be referred to as a Rejected
Debt.
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(b)
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When
deciding whether or not to purchase any Debt Offered, the Bank must
consider each Debt Offered on an individual basis and act at all times
reasonably and in good faith.
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3.4
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Where
required to do so by the Bank, the Client agrees to place payment
direction detailson
its Invoices and Debtor Statements for Purchased Debts. Such details must
be as set out at paragraph 3 of the Schedule, or in such other form as
required from time to time by the Bank and notified to the Client in
writing.
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6
3.5
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Subject
to clause 3.2, the Client declares that it will hold all of its right,
title and interest to allproceeds
of a Purchased Debt received by the Client on trust for the Bank on and
from the Effective Date in relation to that Purchased
Debt.
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4.
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Service
Fee, Line Fee and Other Charges
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4.1
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The
Client acknowledges that the fees and charges that the Bank may require
the Client topay,
include (without limitation):-
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(a)
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Service
Fees, including any minimum amount for Service Fees determined by the Bank
in accordance with Clause 4A.1;
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(b)
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a
Line Fee;
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(c)
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Discount,
at the Discount Rate, including any minimum amount for Discount determined
by the Bank in accordance with Clause
4A.1;
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(d)
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all
bank charges and government duties, relating to payments received by the
Bank for Purchased Debts;
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(e)
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all
costs and expenses incurred by the Bank in the preparation of this
Agreement, including legal fees and stamp duties together with all costs
of the enforcement of this Agreement, and the costs of carrying out any
transaction required or contemplated by this Agreement, including duties
payable on any assignment or reassignment of
Debts;
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(f)
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the
amount of any payment instrument, where such instrument has been
dishonoured following payment by a Debtor to the Bank in respect of a
Purchased Debt; and
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(g)
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such
other reasonable fees as may be advised by the Bank in writing from time
to time.
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4.2
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The
Bank has established certain categories of Debtors as set out at paragraph
4 of theSchedule,
for the purposes of determining Service Fees. Subject to Clause 4A.1 in
relation to any Purchased Debt, the Service Fee shall be calculated by:
-
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(a)
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the
Bank determining to whichever category in paragraph 4 of the Schedule the
Debtor belongs; and
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(b)
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applying
the percentage rate set out opposite such category to the amount of the
Purchased Debt.
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7
4.3
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The
Bank may add to or withdraw from the categories of Debtors set out at
paragraph 4 ofthe
Schedule from time to time upon written notice to the
Client.
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4.4
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The
Service Fees are and the Line Fee is due and payable as
follows:-
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(a)
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the
Service Fee, immediately upon Assignment;
and
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(b)
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the
Line Fee, monthly in advance, on the last Business Day of each
month.
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To avoid
doubt, in the case of the Line Fee, an amount equivalent to one-twelfth of the
Line Fee is due and payable in accordance with sub-paragraph 4.4(b) on the last
Business Day of each month.
4.5
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The
Client agrees that the Bank shall be entitled to debit Funds in Use with
any moneyspayable
by the Client under this Agreement.
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4.6
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Discount
shall be debited to Funds in Use on the last calendar day of each
month.
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4.7
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The
Bank is entitled to debit all moneys payable by the Client under this
Agreement toFunds
in Use.
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4A.
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Minimum
charges
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4A.1
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If
the Bank advises the Client that a minimum amount or amounts for either
Service Fees or Discount (or for both Service Fees and Discount) is to
apply in relation to any period, the Client will pay to the Bank, as and
when directed by the Bank, any such amounts, notwithstanding that the
amount of Service Fees or Discount actually charged by the Bank during the
relevant period is less than such minimum amount or amounts determined by
the Bank for that period. The Client is entitled to deduct or have
deducted from such minimum amount any Service Fees or Discount already
paid during the relevant
period.
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4B.
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Goods
& Services Tax
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4B.1
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All
amounts expressed or determined to be payable by the Client under this
agreement, otherwise than by virtue of this clause, are calculated and
will be determined exclusive of goods and services
tax.
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4B.2
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On
the due date for payment of an amount payable by the Client under this
agreement for a taxable supply, the amount the Client must pay to the Bank
is the amount derived by multiplying the original amount payable by the
formula [1+(the decimal express of the goods and services tax rate imposed
under the Goods & Services Tax
legislation)].
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8
5.
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Retention
and Classification of Debts
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5.1
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The
Bank has established various classes of Purchased Debts, for the purposes
ofdetermining
percentage amounts for Retention, such classes and percentages being set
out in paragraph 6 of the Schedule. The parties shall by agreement add to
or withdraw such classes of Purchased Debts from time to
time.
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9
5.2
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The
Bank shall classify Purchased Debts, utilising the following
classifications and criteria: -
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(a)
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“Unapproved Debt” in
relation to a Debtor, means a Purchased Debt or any part thereof
the amount of which exceeds the Funding
Limit;
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(b)
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“Disputed Debt”, means a
Purchased Debt where the Debtor disputes the Debt for any
reason, or sets up or attempts to set up a set-off or
counterclaim;
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(c)
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“Ineligible Debt” means a
Purchased Debt where: -
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(i)
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the
Debtor is a Related Person or Entity of the Client;
or
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(ii)
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the
Sale is made upon terms and conditions which are unacceptable to the Bank
(acting reasonably); or
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(iii)
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the
Bank classifies the Debt as an Ineligible Debt upon the occurrence of any
of the events set out in sub-Clauses 14.1 (a), (b), (c) (d) or (e);
with
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(d)
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all
other Purchased Debts being classified asApproved
Debts.
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5.3
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The
Client and the Bank acknowledge that:
-
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(a)
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the
criteria contained in Clause 5.2 are not exhaustive, and
that
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(b)
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the
Bank may only reclassify any Purchased Debt (acting
reasonably).
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5.4
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Approved
Debts, Unapproved Debts and Disputed Debts are Debts the amounts of which
are, subject to Retention, available for Prepayments; whilst an Ineligible
Debt is a Debt the amount of which is not available for
Prepayments.
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6.
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Funding
Limits and Debtor Concentration
Limits
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6.1
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The
Bank may, at its absolute discretion, establish, vary or cancel Funding
Limits from timeto
time.
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6.2
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In
relation to any Debtor, the Bank shall have an absolute discretion in
determiningwhichever
Purchased Debts (or part thereof) are within the Funding
Limit.
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6.3
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All
Funding Limits are cancelled forthwith upon termination of this
Agreement.
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6.4
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The
Bank may set a Debtor Concentration Limit in respect of any
Debtor.
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10
7.
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Purchase
Price and Prepayments
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7.1
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Subject
to Clause 9.5, the Purchase Price will become payable to the Client upon
aPurchased
Debt becoming a Matured Debt.
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7.2
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Notwithstanding
the provisions of Clause 7.1, the Bank shall, if requested by the Client
atany
time, make Prepayments, subject to Client
Availability.
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7.3
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Client
Availability at any time shall be calculated as follows:
-
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(a)
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the
amount of Total Outstandings, Less
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(b)
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the
sum of Retention and the debit balance of Funds in Use, or, if Funds in
Use has a credit balance, then the difference between Retention and such
credit balance.
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7.4
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Prepayments
shall be debited to Funds in Use.
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7.5
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The
Client shall only be entitled to any moneys classified as Retention when
the Bank hasreceived
and reconciled payment of the Debt to which they refer. Such entitlement
is recorded by the crediting of the amount received (less the Service Fee)
to Funds in Use with a corresponding reduction in Total Outstandings and
adjustment to Retention.
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7.6
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If,
at any time, the amount determined by applying Retention to the balance of
Funds in Useexceeds
Total Outstandings, then the amount of such excess shall be immediately
due and payable to the Bank.
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7.7
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If
at any time the balance of Funds in Use is in credit, the Bank may, at its
discretion, paysuch
credit balance to the Client, without a request from the Client under
Clause 7.2.
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7.8
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Following
any request under Clause 7.2, the proceeds of the relevant Prepayment
shall,where
the Clients' account nominated at paragraph 8 of the Schedule is with the
Bank, be credited as cleared funds to that account within one Business Day
of such request. If the Client's nominated account is with a financial
institution other than the Bank, then such proceeds will be paid to that
financial institution for the credit of the Client within one Business
Day.
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8.
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Variation
of Retention Percentages, Service Fee and
Margin
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8.1
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The
Bank may at its discretion, at any time, vary any of:
-
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(a)
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the
percentages for Retention as set out at paragraph 6 of the Schedule;
or
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(b)
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the
Service Fees; or
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(c)
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the
Margin, or
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11
(d)
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the
Line Fee,
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to take
effect upon 30 days written notice to the Client.
9.
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Statements
and Collections
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9.1
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If
requested by the Bank to do so at any time, the Client will forward its
Debtor Statements(or
any other evidence of Debts) to the Bank, in such manner as the Bank may
request.
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9.2
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In
the case of Non-Disclosed Debts, the Bank may require the Client to
appoint the Bank (orthe
Bank’s agent) as the Client’s agent for the purposes of producing and
forwarding Debtor Statements. Any such appointment may only be terminated
with the approval of the Bank.
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9.3
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The
Bank may collect the proceeds of, and enforce payment of, every Purchased
Debt. Inthe
event of there being any impediment or defence to the Bank’s rights under
this Clause, the Client shall immediately take all steps necessary to
remedy or remove any such impediment or
defence.
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9.4
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Notwithstanding
the nominations contained in paragraph 9 of the Schedule, the Bank
mayfrom
time to time at its discretion determine the responsibilities for and the
methods of collection and enforcement for Non-Disclosed
Debts.
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9.5
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Without
limiting any other provision of this Agreement, if the Client receives any
amount inrelation
to a Purchased Debt (other than a Prepayment) it must immediately pay that
amount into the relevant Proceeds
Account.
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9.6
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The
Bank will credit an amount equivalent to the proceeds of Matured Debts to
Funds inUse.
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9.7
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The
Bank may engage agents for the purposes of collection action in relation
to PurchasedDebts
and may institute and conduct legal proceedings whether in its name or the
name of the Client, and the Bank shall have full control of such
proceedings.
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9.8
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The
Client indemnifies the Bank against all costs and fees (including, without
limitation,commissions,
legal fees and court costs) expended by the Bank in taking or authorising
any collection action or initiating legal process under Clause
9.7.
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10.
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Reserved
Matters
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The
Client agrees that the Bank may from time to time, and at its discretion,
determine which of the Reserved Matters shall be the responsibility of the
Client or of the Bank. For the purposes of this Clause, “Reserved Matters” means
those matters as set out at paragraph 9 of the Schedule. The Bank’s initial
determination as to such responsibilities is set out therein.
12
11.
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Bank
Accounts
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11.1
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The
Client authorises the Bank to open accounts with the Bank in the name of
the Client for the purposes of paying into such accounts all payments made
and all moneys received in respect of Purchased
Debts.
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11.2
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The
Client acknowledges that beneficial ownership of Proceeds Accounts is
vested in the Bank, and that the Bank shall have the sole right of
operation of the accounts.
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11.3
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All
bank fees and government charges relating to the Proceeds Accounts (and
transactions on those accounts) are to be borne by the
Client.
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11.4
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The
Client will place relevant BSB and account numbers for the relevant
Proceeds Account on all Debtor Statements and Assignment Notices as
directed by the Bank.
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11.5
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The
Client agrees that the Bank may deposit payments relating to Purchased
Debts into a Proceeds Accounts, irrespective of whether such payments
include instruments made payable to the Client, and the ClientHEREBY RELEASES AND INDEMNIFIES
the Bank from and against all claims, demands, causes of action and
suits which it has or may have or, but for the execution of this Agreement
would have had, in relation to the Bank effecting deposits of such
payments, and applying the proceeds thereof, AND HEREBY FURTHER INDEMNIFIES the Bank
against all claims, demands causes of action and suits by any persons
asserting rights of ownership over such
payments.
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12.
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Account
Report
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The
Bank will
forward the Account Report to the Client within 10 working days of the Cut-Off
Date.
13.
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Warranties
and acknowledgments by the Client
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13.1
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The
Client acknowledges that all information supplied to the Bank whether in
an Offer Statement or by any other means, whether orally or in writing,
shall be relied upon by the Bank in considering whether to accept any
Offer, in classifying any Purchased Debt, or in calculating Retention from
time to time.
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13
13.2
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The
Clientwarrants,
acknowledges and agrees that:
-
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(a)
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it
has a good, valid and enforceable title in respect of each Debt Offered to
the Bank;
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(b)
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prior
to making any Offer, it will have carried out all of its obligations in
relation to each Sale, including the delivery of goods, and the
performance of services;
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(c)
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it
has or will have observed, in respect of each Sale, all statutory and
regulatory requirements in effecting and carrying out such delivery of
goods and performance of services;
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(d)
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the
Bank will obtain title to each Purchased Debt free from all encumbrances
and equities whatsoever in respect of that Purchased
Debt;
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(e)
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each
Sale will have arisen in the ordinary course of business, and has been
effected in accordance with the Client’s usual terms and conditions of
trading, other than where the Client has varied the usual terms and
conditions of a Sale, in respect of which it has, at the time of Offering
the Debt to the Bank, advised the Bank of such
variation;
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(f)
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the
Client has deducted all deposits, trade discounts and all other allowances
and deductions from the price of the goods and/or services being supplied,
and the Debtor is liable to pay the face value of each Invoice save for
any settlement discount offered;
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(g)
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to
the best of its knowledge, whether actual or constructive, no Debtor is in
breach of any of the terms of any Sale, and no Debtor is, nor will any
Debtor be, entitled to rescind the Sale, or to make any counter-claim,
set-off, defence or other equity in respect of the
Sale;
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(h)
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to
the best of its knowledge, whether actual or constructive, no Debtor is
insolvent, nor has any Debtor made any payment or arrangement for the
benefit of its creditors generally;
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(i)
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all
information (whether contained in an Offer Statement or otherwise, and
whether or not such information has been requested by the Bank) presented
to the Bank is complete, true and
correct;
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|
(j)
|
it
will advise the Bank immediately of all claims and disputes arising out of
Sales and of any other matters likely to affect the Bank’s ability to
enforce its rights in respect of any
Debt;
|
14
|
(k)
|
it
will, in the event that a Debtor has effected any payment relating to a
Purchased Debt to an account controlled by the Client, immediately lodge
an equivalent amount with the Bank, and will procure that future payments
are made by Debtors to the Bank;
|
|
(l)
|
where
a Debtor makes a payment on account of general indebtedness such payment
will be appropriated firstly, towards Purchased Debts, secondly, towards
Funds in Use, with any remaining balance then to be appropriated at the
discretion of the Client;
|
|
(m)
|
it
will issue and deliver to the Bank forthwith all credit notes required to
be issued in respect of any Purchased Debts and will reimburse the Bank
forthwith for the amount of such credit
notes;
|
|
(n)
|
it
will indemnify and keep
indemnified the Bank against any claim of whatsoever kind by a
Debtor against the Bank arising out of a
Sale;
|
|
(o)
|
it
will supply to the Bank, as and when the Bank requests, any information or
documents which the Bank may reasonably require for the Bank to comply
with any applicable laws relating to sanctions, anti-money laundering or
counter-terrorism financing, including (without limitation) laws imposing
"know your customer" or other identification requirements; and
that
|
|
(p)
|
the
name of the individual persons given to the Bank as principals, directors
or signatories of the Client are true and correct and the Client
acknowledges that the law prohibits the use of false names, as well as the
giving, use or production of false and misleading information or documents
in connection with the provision of financial services and the making,
possession or use of a false document in connection with identification
procedures.
|
13.3
|
The
Client further acknowledges and warrants that it will:
-
|
(a)
|
keep
all books and records required by
law;
|
(b)
|
prepare
and forward: -
|
(i)
|
within
seven days of a request to do so by the Bank, an open item aged Debtors’
analysis or, copies of Debtor Statements, or both, if required by the
Bank; or
|
(ii)
|
within
thirty days of a request to do so by the Bank, its monthly accounts
including a balance sheet, profit and loss
statement;
|
15
(c)
|
prepare
its accounts for each financial year and make the same available to
theBank,
and, if the Bank requests, together with the accounts of any of Xxxxxx
Highland Group Inc., Xxxxxx Highland (APAC) Pty Limited and Xxxxxx Global
Resources (NZ) Limited, and deliver to the Bank such reports as the Bank
may direct no later than three months after the end of each financial
year;
|
(d)
|
permit
the Bank or its authorised representatives at all reasonable times to
enter itspremises
for the purposes of inspecting the Client’s books and
records;
|
(e)
|
prepare
and deliver at its expense, copies of such records accounts and books
asrequested
by the Bank;
|
(f)
|
disclose
in good faith to the Bank at all times all material matters within
itsknowledge
relevant to the credit history, credit worthiness or credit standing of
Debtors;
|
(g)
|
supply
the Bank with the financial statements of the Client and any of
HudsonHighland
Group Inc., Xxxxxx Highland (APAC) Pty Limited and Xxxxxx Global Resources
(NZ) Limited in such form and at such times as the Bank may reasonably
require;
|
(h)
|
advise
the Bank forthwith in writing on the happening of any of the following :
-
|
(i)
|
any
event of default as described in Clause
17;
|
|
(ii)
|
any
change in the nature of the Client's
business;
|
|
(iii)
|
where
the Client is a body corporate, any alteration in the shareholding,
directors or management of the Client or any Related Body
Corporate;
|
|
(iv)
|
any
financial obligation or commitment, contingent or otherwise, entered into
or agreed to be entered into, for the benefit of any third party,
including any Related Person or Entity of the Client, other than any
Permitted Financial Indebtedness;
|
(i)
|
not
make any alteration to its usual terms and conditions of trading without
providingat
least 7 days notice of its intention to do so in writing to the
Bank;
|
(j)
|
not
do any thing or fail to do any thing which might in any way prejudice
thecontinuation
in full force and effect of any policy of trade or credit
insurance;
|
(k)
|
assign
to the Bank when requested, all rights and remedies under any policy of
tradeor
credit insurance in relation to any Purchased
Debts;
|
16
|
(l)
|
advise
the Bank (and provide specimen signatures) of all persons authorised to
originate Offers and provide instructions to the Bank relating to any
matters relevant to this Agreement;
|
|
(m)
|
advise
the Bank of the name of any person or body corporate which becomes or
ceases to be a Related Body
Corporate;
|
|
(n)
|
not
assign, transfer or charge its rights and obligations in respect of this
Agreement without the prior consent of the Bank obtained in writing;
and
|
|
(o)
|
supply
to the Bank, when the Bank asks, any information or documents which the
Bank may reasonably require for the Bank to comply with any applicable
laws relating to sanctions, anti-money laundering or counter-terrorism
financing, including (without limitation) laws imposing “know your
customer” or other identification
requirements.
|
13.4
|
The
Client agrees that it will only utilise the proceeds of Prepayments for
purposes related to its
business.
|
13.5
|
The
Client agrees that, in relation to all records and information (which
includes, without limitation, contracts, computer records and software and
stock records) pertaining to Purchased Debts:
-
|
|
(a)
|
its
right title and interest in the same has been charged to the Bank pursuant
to a charge dated on or about the date of this Agreement and it will
provide to the Bank, at such times requested by the Bank, access to all
records and information (which includes, without limitation, contracts,
computer records and software and stock records) pertaining to Purchased
Debts held by the Client; and
|
|
(b)
|
it
will not do any act, nor fail to do any act which would prejudice the
rights of the Bank under this
Clause.
|
The
Bank’s rights under this Clause shall survive any termination of this Agreement,
unless the Bank agrees otherwise, in writing.
13.6
|
The
Client acknowledges that the warranties and acknowledgments in Clause 13.2
are repeated and apply in respect of each Offer made to the Bank during
the currency of this Agreement, and shall remain continuing warranties in
respect of all Purchased Debts and shall not be terminated, affected or
impaired by any termination of this
Agreement.
|
13.7
|
The
Client acknowledges that the Bank may, at its absolute discretion, grant
any time, indulgence or forbearance to the Client or a Debtor, and that
such granting of time, indulgence or forbearance will not in any way
discharge either the Client or Debtor from any liabilities under this
Agreement, nor create any estoppel binding on the
Bank.
|
17
14.
|
Reassignment
and Repurchase
|
14.1
|
If
in relation to any Purchased Debt:
-
|
|
(a)
|
there
occurs any breach of warranty under this Agreement by the Client;
or
|
|
(b)
|
there
occurs a default in the payment of the full amount owing in respect of the
Debt by the Due Date; or
|
|
(c)
|
the
Debt becomes a Disputed Debt (as defined in clause 5.2(b));
or
|
|
(d)
|
the
Client does not approve of the taking of legal action in respect of the
Debt, following a request to that effect by the Bank, or
where
|
|
(e)
|
this
Agreement is terminated for any
reason,
|
then the
Bank shall be entitled to either: -
|
(f)
|
reassign
the Debt to the Client, and the Client shall execute any documents
necessary to effect such reassignment;
or
|
|
(g)
|
reclassify
the Debt as an Ineligible Debt.
|
For the
purposes of this Clause, “Due
Date”, in relation to a Purchased Debt, means the date which is 90 days
after the end of the month in which the Effective Date for that Purchased Debt
occurs.
14.2
|
The
Bank shall also be entitled to exercise its rights of reassignment under
Clause 14.1 (e) upon termination of this Agreement for any
reason.
|
14.3
|
Where
the Bank determines to reassign a Debt or reclassify a Debt as an
Ineligible Debt, then, upon such reassignment or reclassification, the
Bank shall be entitled to be reimbursed for the face amount (“Value”) of
such Debt and the Bank may: -
|
(a) require
the Client to reimburse the Bank forthwith for the Value; or
(b) may
debit Funds in Use for the Value.
14.4
|
The
Client may apply, at any time, to repurchase any Purchased Debt from the
Bank, subject to the Bank’s absolute discretion as to whether to allow
such repurchase.
|
18
14.5
|
On
reassignment or repurchase under this Clause 14:
-
|
|
(a)
|
all
rights and obligations of the Bank under this Agreement in relation to
such Debts shall determine; and
|
|
(b)
|
the
proceeds of such Debts are released from the trust established under
Clause 3.5 without any further action being taken by the Bank or the
Client; the Client may, at any time following reassignment or repurchase
Offer such reassigned or repurchased Debts on the same terms and
conditions as apply in this
Agreement.
|
15.
|
Disclosure
and Non-Disclosure
|
15.1
|
Subject
to this Agreement, the Bank may agree to accept Offers from the Client on
either a Disclosed or Non-Disclosed
basis.
|
15.2
|
Where
the Bank has determined under this Agreement to require the Client to
collect the proceeds of Non-Disclosed Debts, the Client shall at all times
act as the Bank may direct, and shall collect and hold all such proceeds
on behalf of the Bank, and account for same to the Bank forthwith upon
receipt.
|
15.3
|
Notwithstanding
any other provision of this Agreement, the Bank shall be entitled to issue
Assignment Notices to Debtors in respect of Non-Disclosed Debts,
immediately upon either:-
|
(a) the
occurrence of an event of default under Clause 17; or
(b) the
expiry of thirty days notice in writing to that effect to the
Client.
15.4
|
Upon
the provisions of Clause 15.3 coming into effect, the Client shall all
times render such assistance to the Bank as it reasonably requires to
assist in the collection of Non-Disclosed
Debts.
|
16.
|
Charges
and Security
|
16.1
|
Apart
from any security or charge already consented to by the Bank, the Client
warrants that: -
|
(a)
|
it
has no mortgage over, or fixed or floating charges outstanding on any part
of itsassets
or undertakings and that it is not a party to any transaction, agreement
or arrangement whereby Purchased Debts are or could become subject to any
interest or charge or encumbrance of any kind, and the Client will not
create any such interest or charge, or enter into any such transaction,
agreement or arrangement without the Bank's prior consent in writing;
and
|
19
(b)
|
there
is no impediment to the Client offering to sell Debts to the Bank from
time totime.
|
16.2
|
The
Client will execute in favour of the Bank, a registered fixed and floating
charge and mortgage or such other security as the Bank may require, on
terms and conditions acceptable to the Bank, over all or any of the
Client’s assets and undertakings as security for the payment of all sums
due or becoming due to the Bank by the Client. This Agreement is an
agreement to which any such charge or other security
extends.
|
17.
|
Default
|
17.1
|
Without
limiting any event of default in any security supporting repayment of any
moneys which may become due or owing by the Client under this Agreement,
an event of default occurs if:
-
|
|
(a)
|
the
Client defaults in the due observance and performance of any of the
covenants and undertakings in this
Agreement;
|
|
(b)
|
where
the Client is a body corporate, the Bank in its absolute discretion
determines that a material change in the legal and beneficial ownership or
control or a Significant Influence (as defined in Accounting Standard AASB
1017: Related Party Disclosures, or any successor to Accounting Standard
AASB 1017) of the Client or of a Related Body Corporate of the Client
[Note: this change is rejected from the Xxxxxx draft] is not acceptable to
the Bank;
|
|
(c)
|
any
other events or series of events, whether related or not, occurs
(including, without limitation, any material adverse change in the
business, assets or financial condition of the Client or any Related Body
Corporate of the Client) which, in the opinion of the Bank, renders it
less likely that the Client [Note this change is rejected from the Xxxxxx
draft] is able to substantially comply with its obligations under this
Agreement; or
|
|
(d)
|
the
Client, a Debtor, a Related Person or Entity or a person who has authority
to act as an agent appears to the Bank to be a Proscribed
Person.
|
17.2
|
If
an event of default occurs under this Agreement or under any security
given to the Bank by the Client, the Bank may, at its option, and
notwithstanding any delay or previous waiver of the right to exercise such
option, immediately declare that:
-
|
(a) declare
that the Client is in default;
(b) declare
that this Agreement or any other Agreement is terminated; and
20
|
(c)
|
refuse
to process or complete a Sale or any transaction of the Client’s and/or a
Proscribed Person;
|
|
(d)
|
stop
payment of funds (including, but not limited to Funds in Use), suspend the
provision of a product or service under an
Agreement;
|
|
(e)
|
refuse
to consent to any dealings with any security by the Client, a Debtor, a
Related Person or Entity or any authorised agent;
and
|
|
(f)
|
declare
that any amounts owing to the Bank under this Agreement are payable
immediately.
|
17.3
|
Any
declaration or action taken under Clause 17.2 does not limit any of the
Bank’s rights under any security given by the Client to the
Bank.
|
17.4
|
Termination
of the Agreement will not affect any accrued rights under this Agreement,
and the provisions of this Agreement will remain in effect to bind both
parties in order to give effect to such accrued
rights.
|
17.5
|
The
Client acknowledges and agrees that it will be liable for any damages,
losses, costs orexpenses
that the bank reasonably incurs in exercising its rights under clause
17.2.
|
17.6
|
The
Bank will not be responsible for any loss, liability or costs incurred by
the Client if the Client is in default under
17.1(d).
|
18.
|
Certification
|
The
Client agrees that a certificate in writing made up from the books of the Bank,
and signed by an officer of the Bank of the status of "manager", stating the
balances of Funds in Use or Retention shall be sufficient evidence of such
balances, and of all other matters set out in such certificate, without it being
necessary for the Bank to produce any books or vouchers to verify the same, in
the absence of manifest error.
19.
|
Power
of Attorney
|
19.1
|
The
Client hereby irrevocably appoints the Bank and every Authorised Officer
thereof as its attorney both during the currency of and after the
termination of this Agreement to execute all documents and do all things
required in the Client's name and on its behalf in order to give effect to
the provisions of this Agreement including (but without limiting the
generality of the foregoing):
-
|
(a)
|
the
endorsement of any negotiable
instrument;
|
21
|
(b)
|
the
execution of a legal assignment or legal assignments of all or any Debts
which may from time to time be sold to the Bank in pursuance of this
Agreement;
|
|
(c)
|
the
collection of the proceeds of any Purchased Debt (including taking
enforcement action for the collection of any Purchased Debt);
and
|
|
(d)
|
the
granting of any compromise in respect of any Purchased Debt, or the giving
of a discharge for any Purchased
Debt;
|
The Bank
is hereby empowered to appoint and remove at its discretion any substitute or
agent in respect of all or any of the matters referred to in this Clause. For
the purposes of this Clause, “Authorised Officer” includes every officer of the
Bank the title for whose position is or includes the word “Manager” or
“Accountant”.
19.2
|
Termination
of this Agreement shall not revoke or in any way affect the appointment
under this Agreement of the Bank as the Client’s
attorney.
|
20.
|
Termination
|
20.1
|
Subject
to this Agreement, either party may give 90 days written notice of its
intention to terminate this
Agreement.
|
20.2
|
Notwithstanding
any other provision of this Agreement, the Client’s right to request
Prepayments shall cease upon termination of this
Agreement.
|
20.3
|
Upon
the termination of this Agreement for any reason then:
-
|
|
(a)
|
if
Funds in Use has a debit balance, then such debit balance will immediately
become a debt due and payable to the Bank;
and
|
|
(b)
|
the
Bank is not obliged to allow as a set-off against the amount of Funds in
Use payable by the Client, any amount of Purchase Price of outstanding
Debts (whether it consists of Retention or otherwise) unless and to the
extent that the Bank receives payment of the Debt on its
maturity.
|
20.4
|
The
Client shall only be entitled to any credit balance of Funds in Use, upon
all of its liabilities to the Bank (including accrued discount and
contingent liabilities) being calculated and discharged following
termination.
|
20.5
|
Any
debit balance of Funds in Use owing to the Bank, is immediately due and
payable to the Bank, notwithstanding that the Bank may be holding
outstanding Debts or may be holding as Retention an amount against
contingent liabilities of the
Client.
|
22
20.6
|
Discount
shall continue to accrue pursuant to the terms of this Agreement on any
balance of Funds in Use owing to the Bank following the termination of
this Agreement.
|
21.
|
Commissions
|
21.1
|
The
Client acknowledges that the Bank may pay commissions or fees to persons
from whom the Bank receives referrals of persons seeking finance or
factoring facilities.
|
21.2
|
The
Client further acknowledges that any person who has referred the Client to
the Bank or has acted as a broker in relation to this Agreement has done
so as the agent of the
Client.
|
22.
|
Notices
|
22.1
|
Notice
to be served under this Agreement may be delivered or sent personally, or
by prepaid post, or by facsimile or by prearranged electronic means, to
the party to be served as set out in the
Schedule.
|
A notice
is deemed to be given:
(a)
|
if
the notice is delivered personally, on the date the notice is received by
a person at the
addressee’s address for
notices;
|
(b)
|
if
the notice is sent by pre-paid post, on the date the notice would have
been received
in the ordinary course of
post;
|
(c)
|
if
the notice is sent by facsimile transmission which produces a transmission
report, at
the time shown in a transmission report which indicates that the whole
transmission was sent; and
|
(d)
|
if
the notice is sent by prearranged electronic means, at the time the
electronic notice enters
the designated information
system.
|
22.2
|
Either
party may at any time, upon written notice to the other, amend its address
for service.
|
23.
|
Variation
|
In
addition to any rights of the Bank to vary certain provisions as set out in this
Agreement, the parties may by agreement in writing modify any of the terms and
conditions contained herein.
23
24. Liability
Joint and Several
Where two
or more Clients are parties to this Agreement, then this Agreement and all
covenants and undertakings contained herein shall bind all of them jointly and
each of them severally.
25. Applicable
Law
This
Agreement is to be governed by the Law of the State of New South Wales, and the
parties submit to the exclusive jurisdiction of the courts of New South Wales
for all matters arising out of this Agreement.
24
SCHEDULE
1.
|
Client’s
Name and ACN: -
|
Xxxxxx
Global Resources (Aust) Pty
|
Limited
|
||
ACN
002 888 762
|
||
2.
|
Client’s
address: -
|
Xxxxx
00, 00 Xxxxxxxx Xxxxxx
|
XXXXXX
XXX 0000
|
||
3.
|
Details
for payment directions: -
|
|
(a) Address:
-
|
Xxxxx
00, 00 Xxxxxxxx Xxxxxx
|
|
XXXXXX
XXX 0000
|
||
(b) Account
number (including BSB)
|
062-000
10615531
|
|
4.
|
Debtor
Categories and Service Fees: -
|
|
Category
A Debtors
|
0.90%
of the facility limit per annum
|
|
charged
monthly in advance
|
||
5.
|
Amount
of Special User Retention: -
|
Nil
|
6.
|
Retention
percentages for: -
|
|
A. Approved
Debts
|
25%
|
|
B. Unapproved
Debts
|
100%
|
|
C. Disputed
Debts
|
100%
|
|
D. Ineligible
Debts
|
100%
|
|
E. Debtor
Concentration Retention
|
100%
|
|
7.
|
Margin:
-
|
1.60%
|
8.
|
Account
details for Prepayments: -
|
|
062000
|
||
(a) BSB
number-
|
||
(b) Account
number-
|
00000000
|
|
9.
|
Reserved
Matters: -
|
|
Client
Bank
|
||
(a) production
of Debtor Statements:
|
√
|
|
Client Bank
|
||
(b) forwarding
Debtor Statements:
|
√
|
|
Client Bank
|
||
(c) collection
of Debts:
|
√
|
|
Client Bank
|
||
(d) forwarding
collection correspondence to
|
√
|
|
Debtors:
|
25
10.
|
Cut-Off
Date: -
|
|
(if
not last day of month)
|
||
11.
|
Matters
to be included in Account Report: -
|
Client
Statement
|
12.
|
Notices
to be served as follows: -
|
|
(a) to
the Bank at-
|
Xxxxx
0,
|
|
000
Xxxxxx Xxxxxx
|
||
XXXXXXXXXX
XXX 0000
|
||
For
the attention of-
|
Portfolio
Manager
|
|
(b) to
the Client at-
|
Xxxxx
00, 00 Xxxxxxxx Xxxxxx
|
|
XXXXXX
XXX 0000
|
||
For
the attention of-
|
Xxxx
Xxxx Xxxxx
|
26
Signed
for and behalf of COMMONWEALTH
BANK OF AUSTRALIA by its
authorised
representative
in the presence of:
/s/
Xxxxxx Bougesis
Witness
|
/s/
Xxxxx Xxxxxxxxxx
Authorised
representative
|
|
Xxxxxx
Bougesis
Print
name
|
Xxxxx
Xxxxxxxxxx
Print
name
|
EXECUTED
by
|
)
|
|
Xxxxxx
Global Resources (Aust) Pty Limited
|
)
|
|
ACN
002 888 762
|
)
|
/s/
Xxxx Xxxxx
|
)
|
Director
|
|
)
|
||
being
signed by those persons who are
|
)
|
Full
Name Xxxx Xxxxx
|
authorised
under its constitution to sign
|
)
|
Address Level
19
|
for
the company
|
)
|
00
Xxxxxxxx Xxxxxx
|
)
|
Sydney
|
|
)
|
||
)
|
/s/
Xxxx Xxxxx
|
|
)
|
Director
|
|
8/3/2010
|
)
|
|
Date
|
)
|
Full
Name Xxxx Xxxxx
|
)
|
Address Xxxxx
00
|
|
00
Xxxxxxxx Xxxxxx
|
||
Xxxxxx
|
27