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EXHIBIT 10.6.1
LOAN FACILITY AGREEMENT
ANSELL HEALTHCARE INCORPORATED
(ANSELL)
AND
PACIFIC DUNLOP HOLDINGS INC.
(PDH)
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TABLE OF CONTENTS
Clause Page
1. DEFINITIONS AND INTERPRETATION 1
1.1. Definitions 1
1.2. Interpretation 5
1.3. Business Day 6
2. LOAN 6
2.1. Amount 6
2.2. Drawing 6
2.3. Currency 7
2.4. Loan Agreement 7
2.5. External Finance 7
3. CONDITIONS PRECEDENT 7
3.1. Documents to be provided 7
4. INTEREST 7
4.1. Interest 7
4.2. Margin 7
4.3. Funds deposited with Lender 8
5. PAYMENT, REPAYMENT AND PREPAYMENT 8
5.1. Time and method of payment 8
5.2. Payments in gross 8
5.3. Prepayment 8
6. REPRESENTATIONS AND WARRANTIES 9
6.1. Representations and warranties 9
6.2. Survival of representations and warranties 9
7. UNDERTAKINGS 9
7.1. Term of undertakings 9
7.2. General undertakings 9
7.3. Negative pledge and disposal of assets 10
7.4. Financial Indebtedness 10
7.5. Application of surplus cash 10
8. EVENTS OF DEFAULT 11
8.1. Events of Default 11
8.2. Consequences of default 13
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Clause Page
9. COSTS AND EXPENSES 13
9.1. Costs and expenses 13
9.2. Establishment Fee 14
9.3. Tax 14
9.4. Additional payments 14
10. GUARANTEE 15
10.1. Guarantee 15
10.2. Payment 15
10.3. Amount of Secured Moneys 15
10.4. Proof by PDH 15
10.5. Avoidance of payments 15
10.6. Indemnity for avoidance of Outstanding Moneys 17
10.7. No obligation to marshal 17
10.8. Non-exercise of Xxxxxx'x rights 17
10.9. Principal and independent obligation 17
10.10. Suspense account 17
10.11. Unconditional nature of obligations 18
10.12. No competition 19
10.13. Continuing guarantee 20
10.14. Variation 20
11. INTEREST ON OVERDUE AMOUNTS 21
11.1. Payment of interest 21
11.2. Accrual of interest 21
11.3. Rate of interest 21
11.4. Payment of Interest 21
12. ASSIGNMENT 21
12.1. Assignment by Ansell 21
12.2. Assignment by PDH 21
13. GENERAL 21
13.1. Notices 21
13.2. Governing law and jurisdiction 22
13.3. Prohibition and enforceability 23
13.4. Waivers 23
13.5. Variation 23
13.6. Cumulative rights 23
13.7. Certificates of PDH 23
13.8. Counterparts 24
SCHEDULE 1 - CONDITIONS PRECEDENT
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THIS LOAN FACILITY AGREEMENT
is made on 2000 between the following parties:
1. XXXXXX HEALTHCARE INCORPORATED, a Delaware corporation
(ANSELL)
2. PACIFIC DUNLOP HOLDINGS INC., a Delaware corporation
(PDH)
RECITALS
Ansell has requested PDH and PDH has agreed to lend or procure
to be lent to Ansell and certain of Ansell Subsidiaries up to
$200,000,000 (or its equivalent in Optional Currencies) on the
terms and conditions contained in this agreement.
THE PARTIES AGREE
1. DEFINITIONS AND INTERPRETATION
1.1. DEFINITIONS
ANSELL SUBSIDIARY means a Subsidiary of Ansell;
AUTHORISATION includes:
(a) any consent, registration, filing, agreement,
notarisation, certificate, licence, approval, permit,
authority or exemption from by or with a Governmental
Agency; or
(b) any consent or authorisation regarded as given by a
Governmental Agency due to the expiration of the
period specified by a statute within which the
Governmental Agency should have acted if it wished to
proscribe or limit anything already filed, lodged,
registered or notified under that statute;
BORROWER means, in respect of a Loan, Ansell or such other
person being an Ansell Subsidiary nominated by Ansell and
approved by PDH as the Borrower for the purpose of that Loan;
BUSINESS DAY means:
(a) for the purposes of clause 13.1, a day on which banks
are open for business in the city where the notice or
other communication is received excluding a Saturday,
Sunday or public holiday; and
(b) for all other purposes, a day on which banks are open
for business in New York excluding a Saturday, Sunday
or public holiday;
DEPOSIT INTEREST RATE means on any day:
(c) in respect of a deposit in Dollars, the Federal Funds
Rate;
(d) in respect of a deposit in an Optional Currency, the
Equivalent Deposit Rate for that Optional Currency;
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EQUIVALENT DEPOSIT RATE means, in respect of an Interest
Period and an Optional Currency, the interest rate determined
by PDH in good faith to be the equivalent or nearest possible
equivalent to the Federal Funds Rate for that Optional
Currency;
EQUIVALENT INTEREST RATE means, in respect of an Optional
Currency in respect of which LIBOR is inapplicable, the
interest rate determined by PDH in good faith to be the
equivalent or the nearest possible equivalent to LIBOR for
that currency;
DOLLARS, US$ and $ means the lawful currency of the United
States of America;
ENCUMBRANCE means any Security Interest, easement given by way
of security, restrictive covenant given by way of security,
garnishee order, writ of execution, assignment of income or
monetary claim, and any agreement to create any of them or
allow them to exist;
ERISA means the Employee Retirement Income Security Act of
1974, as amended.
ERISA AFFILIATE means any trade or business (whether or not
incorporated) which, together with Ansell or any Borrower, as
the case may be, is treated as a single employer under Section
414(b) or (c) of the Code, or solely for purposes of Section
302 of ERISA and Section 412 of the Code, is treated as a
single employer under Section 414 of the Code.
ERISA EVENT means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder,
with respect to a Plan; (b) the adoption of any amendment to a
Plan that would require the provision of security pursuant to
Section 401(a)(29) of the Code or Section 307 of ERISA; (c)
the existence with respect to any Plan of an "accumulated
funding deficiency" (as defined in Section 412 of the Code or
Section 302 of ERISA), whether or not waived; (d) the filing
pursuant to Section 412(d) of the Code or Section 303(c) of
ERISA of an application for a waiver of the minimum funding
standard with respect to any Plan; (e) the incurrence of any
liability under Title IV of ERISA with respect to the
termination of any Plan or Multiemployer Plan; (f) the receipt
by Ansell, any Borrower or any ERISA Affiliate from the PBGC
or a plan administrator of any notice relating to the
intention to terminate any Plan or Plans or to appoint a
trustee to administer any Plan; (g) the receipt by Ansell, any
Borrower or any ERISA Affiliate of any notice concerning the
imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in
reorganization, within the meaning of Title IV of ERISA; (h)
the occurrence of a "prohibited transaction" with respect to
which Ansell or any of its Subsidiaries is a "disqualified
person" (within the meaning of Section 4975 of the Code) or
with respect to which Ansell or any such Subsidiary could
otherwise be liable; and (i) any other event or condition with
respect to a Plan or Multiemployer Plan that could reasonably
be expected to result in a Material Adverse Effect;
EVENT OF DEFAULT means any event specified in clause 8.1;
FEDERAL FUNDS RATE means, in relation to any day, the rate per
annum (rounded upward, if necessary, to the nearest whole
multiple of one one-hundredth of one per cent) equal to the
weighted average of the rates on overnight Federal funds
transactions with members of the United States Federal Reserve
System arranged by Federal funds brokers, as published for
that day (or, if that day is not a
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New York Business Day, for the immediately preceding New York
Business Day) by the Federal Reserve Bank of New York, or if a
rate is not so published for any day which is a New York
Business Day, the average of the quotations for that day on
such transactions received by PDH from three Federal funds
brokers of recognised standing selected by PDH. For the
purposes of this definition "New York Business Day" means a
day on which such Federal funds transactions are carried on in
New York City.
FINANCIAL INDEBTEDNESS means any debt or other monetary
liability in respect of moneys borrowed or raised or any
financial accommodation whatever including, but not limited
to, under or in respect of any:
(a) xxxx of exchange, bond, debenture, note or similar
instrument;
(b) acceptance, indorsement or discounting arrangement;
(c) guarantee;
(d) finance lease;
(e) deferred purchase price (for more than 90 days) of
any asset or service;
(f) obligation to deliver goods or provide services paid
for in advance by any financier or in relation to any
other financing transaction;
(g) amount of capital and premium payable on or in
connection with the redemption of any preference
shares or any amount of purchase price payable for or
in connection with the acquisition of redeemable
preference shares; or
(h) foreign exchange contract, currency swap agreement,
interest rate swap, cap or collar agreement,
commodity derivative transaction or other similar
agreement or arrangement designed to alter or modify
risks arising from fluctuations in currency values,
interest rates or commodity prices,
and irrespective of whether the debt or liability:
(i) is present or future;
(j) is actual, prospective, contingent or otherwise;
(k) is at any time ascertained or unascertained;
(l) is owed or incurred alone or severally or jointly or
both with any other person; or
(m) comprises any combination of the above;
GOVERNMENTAL AGENCY means any government or any governmental,
quasi-governmental, administrative, fiscal or judicial body,
department, commission, authority, tribunal, agency or entity;
INTEREST RATE means in respect of each calendar month:
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(a) in respect of a Loan denominated in Dollars, the
aggregate of LIBOR on the first Business Day of that
month and the Margin;
(b) in respect of a Loan denominated in an Optional
Currency, the aggregate of the Equivalent Interest
Rate on the first Business Day of that month for that
Optional Currency and the Margin.
LENDER means, in relation to a Loan, PDH or such other person
being an affiliate of PDH nominated by PDH as the Lender for
the purpose of that Loan;
LIBOR means, on any date, the rate per annum determined by PDH
to be equal to the arithmetic mean (rounded upwards, if
necessary, to the nearest whole multiple of one thirty-second
of one per cent) of:
(a) the offered quotations for deposits in the currency
in which the Loan is or is to be denominated for a
term of 30 days for an amount closest to the amount
of the Loan which appear on the display designated as
page "LIBO" on the Reuter Monitor Money Rates Service
(or such other page or service as may replace the
LIBO page or the Reuter Monitor Money Rates Service
for the purpose of displaying London Interbank
Offered Rates of leading banks) as at 11.00 a.m. on
such day for delivery on the second London Business
Day after such day; or
(b) if, fewer than two such quotations appear on such
display or if no such display rate is then available,
the rate determined by PDH in good faith.
For the purposes of this definition London Business Day means
a day (other than a Saturday or Sunday) on which banks and
foreign exchange markets are open for business in London;
LIMIT means $200,000,000;
LOAN means each amount lent by a Lender to a Borrower pursuant
to a Loan Agreement;
LOAN AGREEMENT means each agreement between a Lender and a
Borrower in respect of a Loan, substantially in the form
attached hereto as Exhibit A;
MARGIN means, subject to clause 4.2, 0.95 per centum per
annum;
MATERIAL ADVERSE EFFECT means a material adverse effect on:
(a) the ability of Ansell to perform its obligations
under this agreement;
(b) the ability of a Borrower to perform its obligations
under a Loan Agreement;
(c) the rights and entitlements of PDH under this
agreement; or
(d) the rights and entitlements of a Lender under a Loan
Agreement;
MULTIEMPLOYER PLAN means a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA to which Ansell or any Borrower or
any ERISA Affiliate is making or accruing an obligation to
make contributions or has within any of the preceding five
plan years made or accrued an obligation to make
contributions;
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OPTIONAL CURRENCY means any currency which is for the time
being freely transferable and convertible into dollars and
deposits of which are readily available and freely dealt in;
OUTSTANDING MONEYS means all debts and monetary liabilities of
a Borrower to a Lender under or in relation to a Loan
Agreement;
PBGC means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA;
PLAN means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of
ERISA or Section 412 of the Code or Section 307 of ERISA, and
in respect of which Ansell or any Borrower or any ERISA
Affiliate is (or, if such plan were terminated, would under
Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
POTENTIAL EVENT OF DEFAULT means an event which, with the
giving of notice, lapse of time or fulfillment of any
condition, would be likely to become an Event of Default;
POWER means any right, power, authority, discretion or remedy
conferred on PDH or any leave by this agreement or Loan
Agreement or any applicable law;
PRIME RATE means, on any date, the rate posted as such by X.
X. Xxxxxx on the Reuters Monitor System on that date and, if
no such rate is posted, the rate determined by PDH in good
faith;
RELEVANT CURRENCY means the currency in which any payment is
required under a Loan Agreement to be made;
REPAYMENT DATE means the date which is 3 years from the date
of this agreement or such later date agreed by PDH and Ansell;
SECURITY INTEREST means any security for the payment of money
or performance of obligations including a mortgage, charge,
lien, pledge, trust or power;
SUBSIDIARY of an entity means another entity which is a
subsidiary of or otherwise controlled by the first within the
meaning of any approved accounting standard;
TAXES means taxes, levies, imposts and duties imposed by any
authority (including stamp and transaction duties) together
with any related interest, penalties, fines and expenses in
connection with them, except if imposed on the overall net
income of PDH or a Lender; and
WITHDRAWAL LIABILITY means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such
Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.
1.2. INTERPRETATION
In this agreement, headings and boldings are for convenience
only and do not affect the interpretation of this agreement
and, unless the context otherwise requires:
(a) words importing the singular include the plural and
vice versa;
(b) words importing a gender include any gender;
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(c) other parts of speech and grammatical forms of a word
or phrase defined in this agreement have a
corresponding meaning;
(d) an expression importing a natural person includes any
company, partnership, joint venture, association,
corporation or other body corporate and any
Governmental Agency;
(e) a reference to any thing (including, but not limited
to, any right) includes a part of that thing but
nothing in this clause 1.2(e) implies that
performance of part of an obligation constitutes
performance of the obligation;
(f) a reference to a part, clause, party, annexure,
exhibit or schedule is a reference to a part and
clause of, and a party, annexure, exhibit and
schedule to, this agreement and a reference to this
agreement includes any annexure, exhibit and
schedule;
(g) a reference to a document includes all amendments or
supplements to, or replacements or novations of, that
document;
(h) a reference to a party to any document includes that
party's successors and permitted assigns;
(i) no provision of this agreement will be construed
adversely to a party solely on the ground that the
party was responsible for the preparation of this
agreement or that provision;
(j) a reference to liquidation includes official
management, appointment of an administrator,
compromise, arrangement, merger, amalgamation,
reconstruction, winding-up, dissolution, assignment
for the benefit of creditors, scheme, composition or
arrangement with creditors, insolvency, bankruptcy,
or any similar procedure or, where applicable,
changes in the constitution of any partnership or
person, or death.
1.3. BUSINESS DAY
Where the day on or by which any thing is to be done is not a
Business Day, that thing must be done on or by the preceding
Business Day.
2. LOAN
2.1. AMOUNT
PDH agrees to lend moneys or to procure moneys to be lent to
Ansell or to Ansell Subsidiaries nominated by Ansell and
approved by PDH on the terms and conditions contained in this
agreement provided that the aggregate outstanding principal
amount of all Loans must not exceed the Limit.
2.2. DRAWING
The amount of each Loan must be agreed between the relevant
Lender and Borrower.
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2.3. CURRENCY
Loans will be made in Dollars or in any Optional Currency
requested by the relevant Borrower approved by PDH.
2.4. LOAN AGREEMENT
Prior to any Loan being made, a Loan Agreement must be entered
into between the relevant Lender and relevant Borrower.
2.5. EXTERNAL FINANCE
Nothing in this agreement requires Ansell or any Ansell
Subsidiary to borrow moneys from PDH or any Subsidiary of PDH.
Subject to clause 7.4, any Loan may be refinanced from moneys
borrowed from any bank or other financial institution.
3. CONDITIONS PRECEDENT
3.1. DOCUMENTS TO BE PROVIDED
PDH is not obliged to provide or procure any Loan until each
of the conditions precedent set out in schedule 1 has been
satisfied.
4. INTEREST
4.1. INTEREST
Interest on the Outstanding Moneys in respect of each Loan:
(a) accrues daily from and including the day on which
each part of the Outstanding Moneys becomes owing up
to the day immediately preceding the day on which
that part is paid;
(b) is calculated monthly by reference to the applicable
Interest Rate on the first Business Day of the
relevant month;
(c) is payable in arrears on the first Business Day of
the month immediately following the month in which it
accrues;
(d) is calculated on actual days elapsed and a year of
360 days.
4.2. MARGIN
(a) PDH has the right to review and alter the Margin in
accordance with this clause.
(b) If following a review of the Margin, PDH decides that
it is appropriate that the Margin be altered, it may
give Ansell notice to that effect, which notice must:
(1) be in writing;
(2) specify the proposed new Margin;
(3) specify the date on which the new Margin is
to take effect;
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(4) be given not less than 30 days before the
new Margin is to take effect;
(5) not be given within the period of 11 months
following the date of this agreement or
within the period of 11 months following any
previous notice given under this clause.
4.3. FUNDS DEPOSITED WITH LENDER
Ansell or any Ansell Subsidiary may deposit moneys with PDH or
with any Subsidiary of PDH nominated by PDH. Interest at the
applicable Deposit Interest Rate:
(a) accrues daily from and including the day on which the
deposit is made;
(b) is payable monthly in arrears on the 2nd Business Day
of each month; and
(c) is calculated on actual days elapsed and a year of
360 days.
5. PAYMENT, REPAYMENT AND PREPAYMENT
5.1. TIME AND METHOD OF PAYMENT
Outstanding Moneys in respect of each Loan must be repaid to
the relevant Lender:
(a) in immediately available funds;
(b) in the Relevant Currency;
(c) on the Repayment Date or on such later date agreed by
the relevant Lender and Borrower; and
(d) to the account specified by the relevant Lender to
the relevant Borrower,
or in such other manner as the relevant Lender directs.
5.2. PAYMENTS IN GROSS
All payments in respect of a Loan must be made without:
(a) any set-off, counterclaim or condition; and
(b) any deduction or withholding for any Tax or any other
reason, unless the relevant Borrower is required to
make a deduction or withholding by applicable law.
5.3. PREPAYMENT
(a) A Borrower may prepay all or any part of a Loan
together with all unpaid accrued interest in respect
of the amount prepaid on any day to the relevant
Lender in accordance with clause 5.1 (other than
clause 5.1(c)).
(b) Amounts prepaid can be redrawn.
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6. REPRESENTATIONS AND WARRANTIES
6.1. REPRESENTATIONS AND WARRANTIES
Xxxxxx represents and warrants that:
(a) INCORPORATION AND EXISTENCE: it has been duly
incorporated in accordance with the laws of its place
of incorporation, is validly existing and is in good
standing under those laws;
(b) POWER: it has power to enter into this agreement and
observe its obligations under this agreement;
(c) AUTHORISATIONS: it has in full force and effect the
authorisations necessary for it to enter into this
agreement, to observe its obligations and exercise
its rights under this agreement and to allow them to
be enforced;
(d) VALIDITY OF OBLIGATIONS: its obligations under this
agreement are valid and binding and are enforceable
against it in accordance with their terms subject
only to laws relating to insolvency and creditors'
rights generally and the discretionary nature of
equitable remedies;
(e) NO CONTRAVENTION OR EXCEEDING POWER: this agreement
and the transactions under it which involve it do not
contravene its constituent documents or any law or
obligation by which it is bound or to which any of
its assets are subject or cause a limitation on its
powers or the powers of its directors to be exceeded;
(f) RANKING OF OBLIGATIONS: its obligations under this
agreement rank at least equally with all its senior
unsecured indebtedness except liabilities mandatorily
preferred by laws of general application.
6.2. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
The representations and warranties in, or given under, this
agreement including, but not limited to, clause 6.1 survive
the execution of this agreement.
7. UNDERTAKINGS
7.1. TERM OF UNDERTAKINGS
The undertakings in this clause 7 continue in full force and
effect from the date of this agreement until all Outstanding
Moneys under all Loan Agreements have been repaid.
7.2. GENERAL UNDERTAKINGS
Xxxxxx undertakes to:
(a) MAINTAIN AUTHORISATIONS: obtain, renew on time and
comply with the terms of, each Authorisation
necessary for it to enter into this agreement to
which it is a party, to observe its obligations and
exercise its rights under them and to allow them to
be enforced;
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(b) INCORRECT REPRESENTATIONS OR WARRANTY: notify PDH if
any representation or warranty made by it or on its
behalf in connection with this agreement is found to
be incorrect or misleading;
(c) RANKING: ensure that at all times its obligations
under this agreement rank at least equally with all
its other senior unsecured indebtedness except
liabilities mandatorily preferred by law;
(d) STATUS CERTIFICATES: on request from PDH, give PDH a
certificate signed by a director of Xxxxxx which
states whether an Event of Default or Potential Event
of Default continues unremedied; and
(e) NOTIFY DETAILS OF EVENTS OF DEFAULT OR POTENTIAL
EVENT OF DEFAULT: if an Event of Default or Potential
Event of Default occurs, promptly notify PDH giving
full details of the event and any step taken or
proposed to remedy it.
7.3. NEGATIVE PLEDGE AND DISPOSAL OF ASSETS
Whilst PDH has any obligations under this agreement, any
Lender has any obligation to lend any moneys under any Loan
Agreement or there are any Outstanding Moneys under any Loan
Agreement, Xxxxxx must not, and must ensure that each Xxxxxx
Subsidiary does not:
(a) deal with, sell or otherwise dispose of or part with
possession of;
(b) create, permit, suffer to exist, or agree to, any
Encumbrance, other than any Encumbrance existing on
the date hereof and an Encumbrance in favour of PDH
or a Lender, over; or
(c) attempt to do anything listed in clauses 7.3(a) and
(b) in respect of,
any of its assets or the assets of an Xxxxxx Subsidiary,
except in the ordinary course of its ordinary business,
without the prior written consent of PDH.
7.4. FINANCIAL INDEBTEDNESS
Xxxxxx must not, and must ensure that each of its Subsidiaries
does not, incur Financial Indebtedness other than:
(a) under a Loan Agreement; or
(b) with the prior written consent of PDH.
7.5. APPLICATION OF SURPLUS CASH
Xxxxxx must and must ensure that each of its Subsidiaries
applies surplus cash either:
(a) by placing the same on deposit with PDH or any
Lender;
(b) by placing the sum on deposit with any other person
approved by PDH; or
(c) in reduction of Outstanding Moneys under applicable
Loan Agreements.
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8. EVENTS OF DEFAULT
8.1. EVENTS OF DEFAULT
An Event of Default occurs if:
(a) NON PAYMENT: a Borrower does not pay any money
payable under a Loan Agreement in accordance with the
relevant Loan Agreement;
(b) ENFORCEMENT OF JUDGMENT: distress is levied or a
judgment, order or Encumbrance is enforced, or
becomes enforceable against any property of a
Borrower and there is likely, in the reasonable
opinion of PDH, to be a Material Adverse Effect;
(c) INCORRECT REPRESENTATION OR WARRANTY: a
representation or warranty made or taken to be made
by or on behalf of Xxxxxx under this agreement or a
Borrower in or in connection with a Loan Agreement is
found to be incorrect or misleading when made or
taken to be made and, if the relevant fact or
circumstance can be remedied, it is not remedied
within 5 Business Days after a notice from PDH to
Xxxxxx specifying the representation and warranty
concerned;
(d) CEASING BUSINESS: Xxxxxx or a Borrower stops payment,
ceases to carry on its business or a material part of
it, or threatens to do either of those things except
to reconstruct or amalgamate while solvent on terms
approved by PDH;
(e) INVESTIGATION: a person is appointed under
legislation to investigate or manage any part of the
affairs of Xxxxxx or a Borrower and the outcome of
the investigation or appointment to manage is likely,
in the reasonable opinion of PDH, to have a Material
Adverse Effect;
(f) VOID DOCUMENT: this agreement or a Loan Agreement is
or becomes wholly or partly (in a material part)
void, voidable or unenforceable, or is claimed to be
so by Xxxxxx or a Borrower or by anyone on behalf of
Xxxxxx or a Borrower and with its authority, and
alternative documents or other arrangements
acceptable to PDH have not been entered into within
20 days after Xxxxxx or the relevant Borrower (as the
case may be) becomes aware of the matter of concern;
(g) MATERIAL ADVERSE CHANGE: a change occurs in the
business, assets or financial condition of Xxxxxx or
a Borrower, which is likely, in the reasonable
opinion of PDH, to have a Material Adverse Effect;
(h) CROSS DEFAULT: any present or future, or actual,
prospective or contingent, indebtedness of Xxxxxx or
a Borrower in respect of any financial accommodation
(other than under this agreement or a Loan Agreement)
including, but not limited to, moneys payable under a
guarantee:
(1) is or becomes due and payable or is or
becomes capable of being declared due and
payable before the due date for payment; or
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(2) is not paid when due or upon the expiration
of any period of grace which may apply;
(i) ENCUMBRANCE: any Encumbrance is or becomes
enforceable against any asset of Xxxxxx or any Xxxxxx
Subsidiary;
(j) VITIATION OF THIS AGREEMENT:
(1) all or any part of any provision of this
agreement or any Loan Agreement is or
becomes illegal, void, voidable,
unenforceable or otherwise of limited force
or effect;
(2) any person becomes entitled to terminate,
rescind or avoid all or any material part or
material provision of this agreement or any
Loan Agreement;
(3) any person other than PDH or a Lender
alleges or claims that an event as described
in clause 8.1(j)(1) has occurred or that it
is entitled as described in clause
8.1(j)(2); or
(4) the execution, delivery or performance of
this agreement or any Loan Agreement
violates, breaches or results in a
contravention of any law, regulation or
Authorisation;
(k) CHANGE IN CONTROL: Pacific Dunlop Limited ceases to
hold directly or indirectly at least 51% of the
issued stock in Xxxxxx;
(l) VOLUNTARY INSOLVENCY: Xxxxxx or any Xxxxxx Subsidiary
incorporated in the United States of America
commences a voluntary case or other proceeding
seeking liquidation, reorganisation or other relief
with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other
similar official of it or all or any substantial part
of its undertaking, property or assets, or consenting
to any such relief or to the appointment of or taking
possession by any such official in an involuntary
case or other proceeding commenced against it, or
making a general assignment for the benefit or
creditors, or failing generally to pay its debts as
they become due, or taking any corporate action to
authorize any of the foregoing; or
(m) INVOLUNTARY INSOLVENCY: an involuntary case or other
proceeding being commenced against Xxxxxx or any
Xxxxxx Subsidiary incorporated in the United States
of America seeking liquidation, reorganisation or
other relief with respect to it or its debts under
any bankruptcy, insolvency or other similar law now
or hereafter in effect or seeking the appointment of
a trustee, receiver, liquidator, custodian or other
similar official of it or all or any substantial
party of its undertaking, property or assets, and
such involuntary case or other proceeding remaining
undismissed, unnullified, unstayed or otherwise
effective for a period of 90 days or an order for
relief being entered against relevant person under
United States of America federal bankruptcy laws as
now or hereafter in effect;
PAGE 12
16
(n) WINDING UP: a petition is presented or application is
made and is not withdrawn or dismissed or stayed
within 21 days or an order is made for the winding-up
or administration of any Borrower which is not
incorporated within the United States of America, or
an effective resolution is passed for the winding-up
of any such Borrower;
(o) ADMINISTRATOR: an administrative receiver, receiver,
manager or administrator is appointed or an
encumbrancer takes possession of all or a substantial
part of the undertaking, property or assets of any
Borrower, and is not paid out or discharged within 60
days after such appointment or taking possession;
(p) ANALOGOUS PROCEEDINGS: anything analogous and having
substantially similar effect to any of the events
specified in paragraphs (l) to (o) happens under the
laws of the jurisdiction of incorporation of a
Borrower; or
(q) ERISA. any ERISA Event shall have occurred or exist
with respect to Xxxxxx or any Borrower which subjects
Xxxxxx or such Borrower to any tax, penalty, or other
liability under or in connection with ERISA in an
aggregate amount in excess of $150,000.
8.2. CONSEQUENCES OF DEFAULT
If an Event of Default occurs, then PDH and each Lender may
declare at any time by notice to Xxxxxx or each relevant
Borrower that:
(a) Outstanding Moneys in respect of each Loan are:
(1) payable to the relevant Lender on demand; or
(2) immediately due for payment to the relevant
Lender; and
(b) PDH's or the relevant Lender's obligations specified
in the notice are terminated.
9. COSTS AND EXPENSES
9.1. COSTS AND EXPENSES
Xxxxxx must pay all costs and expenses of PDH and any
employee, officer, agent or contractor of PDH in relation to:
(a) the negotiation, preparation, execution, delivery and
stamping of this agreement;
(b) the enforcement, protection or waiver, or attempted
or contemplated enforcement or protection, of any
rights under this agreement;
(c) the consent or approval of PDH given under this
agreement; and
(d) any enquiry by any Governmental Agency involving
Xxxxxx or a Borrower,
PAGE 13
17
including, but not limited to, any administration costs of PDH
and any legal costs and expenses and any professional
consultant's fees for any of the above on a full indemnity
basis.
9.2. ESTABLISHMENT FEE
Xxxxxx must pay to PDH on or before the date of this agreement
an establishment fee of US$200,000.
9.3. TAX
(a) Xxxxxx must pay any Tax incurred or payable by PDH in
respect of the execution, delivery, performance,
release, discharge, amendment, enforcement or
attempted enforcement or otherwise in respect of any
of the following:
(1) this agreement;
(2) any agreement or document entered into or
signed under this agreement including any
Loan Agreement; and
(3) any transaction contemplated under this
agreement or any agreement or document
described in clause 9.3(a)(2) including the
making of any Loan .
(b) Xxxxxx must pay any fine, penalty or other cost in
respect of a failure to pay any Tax described in
clause 9.3(a) except to the extent that the fine,
penalty or other cost is caused by the PDH's failure
to lodge money received from Xxxxxx within 10
Business Days before the due date for lodgement.
(c) Xxxxxx must indemnify PDH against any amount payable
under clause 9.3(a) or 9.3(b) or both.
9.4. ADDITIONAL PAYMENTS
If:
(a) Xxxxxx is required to make a deduction or withholding
of Tax from any payment to be made to PDH under this
agreement; or
(b) PDH is required to pay any Tax concerning any payment
it receives from Xxxxxx under this agreement,
then Xxxxxx:
(c) must indemnify PDH against that Tax; and
(d) must pay to PDH an additional amount which PDH
determines to be necessary to ensure that it receives
when due a net amount (after payment of any Tax for
each additional amount) that is equal to the full
amount it would have received had a deduction or
withholding or payment of Tax not been made.
PAGE 14
18
10. GUARANTEE
10.1. GUARANTEE
In consideration of the agreements on the part of PDH
contained in this agreement, Xxxxxx unconditionally and
irrevocably guarantees to PDH as agent for and on behalf of
each Lender the payment of the Outstanding Moneys due to each
Lender under each Loan Agreement.
10.2. PAYMENT
If Outstanding Moneys under any Loan Agreement are not paid
when due, Xxxxxx must immediately on demand from PDH pay to
PDH for the account of the relevant Lender those Outstanding
Moneys in the same manner and currency as those Outstanding
Moneys are required to be paid under the relevant Loan
Agreement.
10.3. AMOUNT OF SECURED MONEYS
(a) This clause 10 applies to the Outstanding Moneys
under present and future Loan Agreements.
(b) The obligations of Xxxxxx under this clause 10 extend
to any increase in the Outstanding Moneys as a result
of:
(1) any amendment, supplement, renewal or
replacement of any Loan Agreement; or
(2) the occurrence of any other thing.
(c) Clause 10.3(b):
(1) applies regardless of whether Xxxxxx is
aware of or consented to or is given notice
of any amendment, supplement, renewal or
replacement of any Loan Agreement or the
occurrence of any other thing; and
(2) does not limit the obligations of Xxxxxx
under this clause 10.
10.4. PROOF BY PDH
In the event of the liquidation of a Borrower, Xxxxxx
authorises PDH on behalf of each relevant Lender to prove for
all moneys which Xxxxxx has paid or is or may be obliged to
pay under any this agreement, other document or agreement or
otherwise in respect of any Outstanding Moneys.
10.5. AVOIDANCE OF PAYMENTS
(a) If any payment, conveyance, transfer or other
transaction relating to or affecting any Outstanding
Moneys is:
(1) void, voidable or unenforceable in whole or
in part; or
(2) is claimed to be void, voidable or
unenforceable and that claim is upheld,
conceded or compromised in whole or in part,
PAGE 15
19
the liability of Xxxxxx under this clause 10
and any Power is the same as if:
(3) that payment, conveyance, transfer or
transaction (or the void, voidable or
unenforceable part of it); and
(4) any release, settlement or discharge made in
reliance on any thing referred to in clause
10.5(a)(3),
had not been made and Xxxxxx must immediately take
all action and sign all documents necessary or
required by PDH to restore to PDH and each Lender the
benefit of this clause 10.
(b) Clause 10.5(a) applies whether or not PDH or any
Lender knew, or ought to have known, of anything
referred to in that clause 10.5(a).
10.6. INDEMNITY FOR AVOIDANCE OF OUTSTANDING MONEYS
(a) If any of the Outstanding Moneys (or moneys which
would have been Outstanding Moneys had they not been
irrecoverable) are irrecoverable by any Lender:
(1) from any Borrower; or
(2) from Xxxxxx on the footing of a guarantee,
Xxxxxx unconditionally and irrevocably and, as a
separate and principal obligation:
(3) indemnifies each Lender against any claim,
action, damage, loss, liability, cost,
charge, expense, outgoing or payment
suffered, paid or incurred by each Lender in
relation to the non- payment of those
moneys; and
(4) must pay to PDH for the account of each
relevant Lender an amount equal to those
moneys.
(b) Clause 10.6(a) applies to Outstanding Moneys (or
moneys which would have been Outstanding Moneys had
they not been irrecoverable) which are or may be
irrecoverable irrespective of whether:
(1) they are or may be irrecoverable by reason
of any event described in clause 10.11;
(2) they are or may be irrecoverable by reason
of any other fact or circumstance
whatsoever;
(3) the transactions or any of them relating to
those moneys are void or illegal or avoided
or otherwise unenforceable; and
(4) any matters relating to Outstanding Moneys
are or should have been within the knowledge
of PDH or any Lender.
PAGE 16
20
10.7. NO OBLIGATION TO MARSHAL
Neither PDH nor any Lender is required to marshal or to
enforce or apply under or appropriate, recover or exercise:
(a) any Encumbrance, guarantee or other document or
agreement held, at any time, by or on behalf of PDH
or any Lender; or
(b) any money or asset which that Lender, at any time,
holds or is entitled to receive.
10.8. NON-EXERCISE OF XXXXXX'X RIGHTS
Xxxxxx must not exercise any rights it may have inconsistent
with this clause 10.
10.9. PRINCIPAL AND INDEPENDENT OBLIGATION
(a) This clause 10 is:
(1) a principal obligation and is not to be
treated as ancillary or collateral to any
other right or obligation; and
(2) independent of and not in substitution for
or affected by any Encumbrance which PDH or
any Lender may hold in respect of any
Outstanding Moneys or any obligations of any
Borrower or any other person.
(b) This clause 10 is enforceable against Xxxxxx:
(1) without first having recourse to any
Encumbrance;
(2) whether or not PDH or any Lender has:
(A) made demand upon any Borrower; or
(B) given notice to any Borrower or any
other person in respect of any
thing; or
(C) taken any other steps against any
Borrower or any other person;
(3) whether or not any Outstanding Moneys is
due; and
(4) despite the occurrence of any event
described in clause 10.11.
10.10. SUSPENSE ACCOUNT
(a) PDH and each Lender may apply to the credit of a
suspense account:
(1) any amounts received under this clause 10;
(2) any dividends, distributions or other
amounts received in respect of the
Outstanding Moneys in any liquidation; and
(3) any other amounts received from any other
person in respect of the Outstanding Moneys.
(b) PDH and each Lender may retain the amounts in the
suspense account for as long as it determines and is
not obliged to apply them in or towards satisfaction
of the Outstanding Moneys.
PAGE 17
21
10.11. UNCONDITIONAL NATURE OF OBLIGATIONS
(a) This clause 10 and the obligations of Ansell are not
released or discharged or otherwise affected by
anything which but for this provision might have that
effect, including, but not limited to:
(1) the grant to any Borrower or any other
person of any time, waiver, covenant not to
xxx or other indulgence;
(2) the release (including without limitation a
release as part of any novation) or
discharge of any Borrower or any other
person;
(3) the cessation of the obligations, in whole
or in part, of any Borrower or any other
person under any Loan Agreement or any other
document or agreement;
(4) the liquidation of any Borrower or any other
person;
(5) any arrangement, composition or compromise
entered into by PDH, any Lender, any
Borrower or any other person;
(6) any Loan Agreement or any other document or
agreement being in whole or in part illegal,
void, voidable, avoided, unenforceable or
otherwise of limited force or effect;
(7) any extinguishment, failure, loss, release,
discharge, abandonment, impairment,
compound, composition or compromise, in
whole or in part of any Loan Agreement or
any other document or agreement;
(8) any Encumbrance being given to PDH or any
Lender by any Borrower or any other person;
(9) any alteration, amendment, variation,
supplement, renewal or replacement of any
Loan Agreement or any other document or
agreement;
(10) any moratorium or other suspension of any
Power;
(11) PDH or any Lender exercising or enforcing,
delaying or refraining from exercising or
enforcing, or being not entitled or unable
to exercise or enforce any Power;
(12) PDH or any Lender obtaining a judgment
against any Borrower or any other person for
the payment of any Outstanding Moneys;
(13) any transaction, agreement or arrangement
that may take place with PDH, any Lender,
any Borrower or any other person;
(14) any payment to PDH or any Lender, including
any payment which at the payment date or at
any time after the payment date is in whole
or in part illegal, void, voidable, avoided
or unenforceable;
(15) any failure to give effective notice to any
Borrower or any other person of any default
under any Loan Agreement or any other
document or agreement;
(16) any legal limitation, disability or
incapacity of any Borrower or of any other
person;
PAGE 18
22
(17) any breach of any Loan Agreement or any
other document or agreement;
(18) the acceptance of the repudiation of, or
termination of, any Loan Agreement or any
other document or agreement;
(19) any Outstanding Moneys being irrecoverable
for any reason;
(20) any disclaimer by any Borrower or any other
person of any Loan Agreement or any other
document or agreement;
(21) any assignment, novation, assumption or
transfer of, or other dealing with, any
Powers or any other rights or obligations
under any Loan Agreement or any other
document or agreement;
(22) the opening of a new account of any Borrower
with PDH or any Lender or any transaction on
or relating to the new account;
(23) any prejudice (including, but not limited
to, material prejudice) to any person as a
result of:
(A) any thing done, or omitted by PDH,
any Lender, any Borrower or any
other person;
(B) PDH, any Lender or any other person
selling or realising any property
the subject of an Encumbrance at
less than the best price;
(C) any failure or neglect by PDH, any
Lender, a Receiver, Attorney or any
other person to recover any
Outstanding Moneys from any
Borrower or by the realisation of
any property the subject of an
Encumbrance; or
(D) any other thing;
(24) the receipt by PDH or any Lender of any
dividend, distribution or other payment in
respect of any liquidation; or
(25) any other act, omission, matter or thing
whatsoever whether negligent or not.
(b) Clause 10.11(a) applies irrespective of:
(1) the consent or knowledge or lack of consent
or knowledge, of PDH or any Lender, any
Borrower or any other person of any event
described in clause 10.11(a); or
(2) any rule of law or equity to the contrary.
10.12. NO COMPETITION
(a) Until all Outstanding Moneys have been fully paid and
this clause 10 has been finally discharged, Ansell is
not entitled to:
(1) be subrogated to PDH or any Lender;
(2) claim or receive the benefit of:
(A) any Encumbrance, other document or
agreement of which PDH or any
Lender has the benefit;
PAGE 19
23
(B) any moneys held by PDH or any
Lender; or
(C) any Power;
(3) subject to clause 10.12(b) either directly
or indirectly to prove in, claim or receive
the benefit of any distribution, dividend or
payment arising out of or relating to the
liquidation of any Borrower liable to pay
any Outstanding Moneys;
(4) make a claim or exercise or enforce any
right, power or remedy (including, but not
limited to, under Encumbrance or by way of
contribution) against any Borrower liable to
pay any Outstanding Moneys;
(5) accept, procure the grant of or allow to
exist any Encumbrance in favour of Ansell
from any Borrower liable to pay any
Outstanding Moneys;
(6) exercise or attempt to exercise any right of
set-off against, or realise any Encumbrance
taken from, any Borrower liable to pay any
Outstanding Moneys; or
(7) raise any defence or counterclaim in
reduction or discharge of its obligations
under this clause 10.
(b) If required by PDH or any Lender, Ansell must prove
in any liquidation of any Borrower liable to pay any
Outstanding Moneys for all moneys owed to Ansell.
(c) Ansell must not do or seek, attempt or purport to do
anything referred to in clause 10.12(a).
10.13. CONTINUING GUARANTEE
This clause 10 is a continuing obligation of Ansell, despite:
(a) any settlement of account; or
(b) the occurrence of any other thing,
and remains in full force and effect until:
(c) all Outstanding Moneys have been paid in full; and
(d) this clause 10 has been finally discharged by PDH on
behalf of all Lenders.
10.14. VARIATION
This clause 10 extends to cover the Loan Agreements as
amended, varied or replaced, whether with or without the
consent of Ansell, including, but not limited to, any increase
in the limit or maximum principal amount available under a
Loan Agreement.
PAGE 20
24
11. INTEREST ON OVERDUE AMOUNTS
11.1. PAYMENT OF INTEREST
Ansell must pay interest on:
(a) any of the moneys due and payable by it under clause
10, but unpaid; and
(b) on any interest payable but unpaid under clause 11.
11.2. ACCRUAL OF INTEREST
The interest payable under this clause 11:
(a) accrues from day to day from and including the due
date for payment up to the actual date of payment,
before and, as an additional and independent
obligation, after any judgment or other thing into
which the liability to pay such moneys becomes
merged; and
(b) may be capitalised at 30 day intervals.
11.3. RATE OF INTEREST
The rate of interest payable under this clause 11 is the
higher of:
(a) Prime Rate:
(1) on the date that moneys became due and
payable under clause 10; and
(2) on each date which is 30 days after the
immediately preceding date on which the
Prime Rate was determined under this clause
11.3(a); and
(b) the rate fixed or payable under a judgment or other
thing referred to in clause 11.2(a).
11.4. PAYMENT OF INTEREST
Interest payable under this clause is payable on demand by
PDH.
12. ASSIGNMENT
12.1. ASSIGNMENT BY ANSELL
Ansell must not transfer or assign any of its rights or
obligations under this agreement without the prior written
consent of PDH.
12.2. ASSIGNMENT BY PDH
PDH must not assign any of its rights or transfer by novation
any of its rights and obligations under this agreement except
to an affiliate of PDH without the prior written consent of
Ansell, which consent must not be unreasonably withheld.
13. GENERAL
13.1. NOTICES
(a) Any notice or other communication including, but not
limited to, any request, demand, consent or approval,
to or by a party to this agreement:
PAGE 21
25
(1) must be in legible writing and in English
addressed as shown below:
(A) if to PDH:
Address: Pacific Dunlop Holdings Inc.
0000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxx, Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Facsimile: 000-000-0000
(B) if to Ansell:
Address: Ansell Healthcare Incorporated
000 Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxxxx 00000
Attention: President
Facsimile: 000-000-0000
or as specified to the sender by any party
by notice;
(2) where the sender is a company, must be
signed on behalf of the sender;
(3) is regarded as being given by the sender and
received by the addressee:
(A) if by delivery in person, when
delivered to the addressee;
(B) if by post, [10] Business Days from
and including the date of postage;
or
(C) if by facsimile transmission,
whether or not legibly received,
when transmitted to the addressee,
but if the delivery or receipt is on a day
which is not a Business Day or is after
4.00pm (addressee's time) it is regarded as
received at 9.00 am on the following Business
Day; and
(4) can be relied upon by the addressee and the
addressee is not liable to any other person
for any consequences of that reliance if the
addressee believes it to be genuine, correct
and authorised by the sender.
(b) A facsimile transmission is regarded as legible
unless the addressee telephones the sender within 24
hours after the transmission is received or regarded
as received under clause 13.1(a)(3) and informs the
sender that it is not legible.
(c) In this clause 13.1, a reference to an addressee
includes a reference to an addressee's officers,
agents or employees or any person reasonably believed
by the sender to be an officer, agent, or employee of
the addressee.
13.2. GOVERNING LAW AND JURISDICTION
This agreement is governed by, and construed in accordance
with, the internal laws of the State of Delaware.
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26
13.3. PROHIBITION AND ENFORCEABILITY
(a) Any provision of, or the application of any provision
of, this agreement or any Power which is prohibited
in any jurisdiction is, in that jurisdiction,
ineffective only to the extent of that prohibition.
(b) Any provision of, or the application of any provision
of, this agreement which is void, illegal or
unenforceable in any jurisdiction does not affect the
validity, legality or enforceability of that
provision in any other jurisdiction or of the
remaining provisions in that or any other
jurisdiction.
13.4. WAIVERS
(a) Waiver of any right arising from a breach of this
agreement or of any Power arising upon default under
this agreement or upon the occurrence of an Event of
Default must be in writing and signed by the party
granting the waiver.
(b) A failure or delay in exercise, or partial exercise,
of:
(1) a right arising from a breach of this
agreement or the occurrence of an Event of
Default; or
(2) a Power created or arising upon default
under this agreement or upon the occurrence
of an Event of Default,
does not result in a waiver of that right or Power.
(c) A party is not entitled to rely on a delay in the
exercise or non-exercise of a right or Power arising
from a breach of this agreement or on a default under
this agreement or on the occurrence of an Event of
Default as constituting a waiver of that right or
Power.
(d) A party may not rely on any conduct of another party
as a defence to exercise of a right or Power by that
other party.
(e) This clause may not itself be waived except by
writing.
13.5. VARIATION
A variation of any term of this agreement must be in writing
and signed by the parties.
13.6. CUMULATIVE RIGHTS
The Powers are cumulative and do not exclude any other right,
power, authority, discretion or remedy of PDH.
13.7. CERTIFICATES OF PDH
(a) A certificate under the hand of an officer of PDH
detailing the amount of the Outstanding Moneys due
and payable under this agreement or under any Loan
Agreement whether currently due and payable or not is
sufficient evidence unless the contrary is proved.
PAGE 23
27
(b) A certificate under the hand of an officer of PDH
stating the opinion of PDH as to any thing is
sufficient evidence of that opinion at the date
stated on the certificate or failing that as at the
date of that certificate unless the contrary is
proved.
13.8. COUNTERPARTS
(a) This agreement may be executed in any number of
counterparts.
(b) All counterparts, taken together, constitute one
instrument.
(c) A party may execute this agreement by signing any
counterpart.
PAGE 24
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This Agreement is entered into between the parties hereto for the uses
and purpose hereinabove set forth as of the date first above written.
XXXXXX HEALTHCARE INCORPORATED
By:
----------------------------------------
Title:
-------------------------------------
PACIFIC DUNLOP HOLDINGS INC.
By:
----------------------------------------
Title:
-------------------------------------
PAGE 25
29
SCHEDULE 1 - CONDITIONS PRECEDENT
CLAUSE 3.1
PDH must have received all of the following in a form and
substance satisfactory to PDH:
(a) a certified copy of:
(1) an extract of the minutes of a meeting of
the board of directors of Ansell which
evidences the resolutions authorising the
signing and delivery of and observance of
obligations under the agreement and which
acknowledges that the agreement will benefit
Ansell; and
(2) each instrument which evidence any other
necessary corporate or other action in
connection with the agreement; and
(b) a certificate of Ansell certifying that attached
thereto are true and correct copies of all
governmental and regulatory authorisations and
approvals required for the due execution, delivery
and performance of this agreement; and
(c) a certificate of Ansell certifying that attached
thereto are true and correct copies of the
Certificate of Incorporation and the By-laws of
Ansell, in each case in effect on such date.
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30
EXHIBIT A
FORM OF LOAN AGREEMENT
[TO BE ATTACHED]
PAGE 27
