UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-Q/A
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ending MARCH 31, 1998
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from _____ to_____
Commission File Number 001-10684
INTERNATIONAL GAME TECHNOLOGY
(Exact name of registrant as specified in charter)
Nevada 88-0173041
(State of Incorporation) (IRS Employer Identification No.)
9295 Prototype Drive, Reno, Nevada 89511
(Address of principal executive offices)
(702) 448-7777
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding 12 months (or for such
shorter period that the registrant was required to file such reports),
and (2) has been subject to such filing requirements for the past 90
days.
Yes X No
Indicate the number of shares outstanding of each of the issuer's
classes of common stock, as of the latest practicable date.
Class Outstanding at April 30, 1998
Common Stock 113,316,485
par value $.000625 per share
<PAGE>
Part II - Other Information
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
10.9 Facility agreement between I.G.T. (Australia) Pty.
Limited and National Australia Bank Limited, dated
March 18, 1998; Guarantee from International Game
Technology to National Australia Bank Limited, dated
March 18, 1998.
(b) Reports on Form 8-K
None.
<PAGE>
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
Date: May 19, 1998
INTERNATIONAL GAME TECHNOLOGY
By: /s/ Maureen Imus
Maureen Imus
Vice President, Finance and
Chief Financial Officer
Facility Agreement for the IGT Group
Date:
Parties: THE COMPANIES NAMED IN ITEM 1 OF SCHEDULE 1
(each a "Group Member")
NATIONAL AUSTRALIA BANK LIMITED
(ACN 004 044 937) having an
office at Level 25, National
Australia Bank House, 255 George
Street, Sydney, NSW 2000
("Bank").
Recitals:
A. The Bank has agreed at the request of the
Group to provide and/or to continue to provide Facilities to
the Group.
B. This agreement is entered into by the Group in
consideration of that agreement.
Operative provisions:
1. Interpretation
1.1 The following words have these meanings in
this agreement unless the contrary intention
appears.
Accounting Standards means the accounting
standards prescribed under the
Corporations Law, schedule 5 to
the Corporations Regulations and,
where not inconsistent with those
accounting standards and that
schedule, generally accepted
principles and practices in
Australia consistently applied by
the Group as between Group
Members and over time, except if
(and to the extent that) the Bank
may otherwise agree in writing
with the Australian Parent from
time to time.
Accounts means profit and loss
accounts and balance sheets
together with statements, reports
and notes (including, without
limitation, directors' reports
and auditors' reports (if any))
attached to or intended to be
read with any of those profit and
loss accounts or balance sheets.
Acquisition Date means the date
on which an asset is acquired by
the Group and/or the date on
which a company or other entity
becomes a New Group Member.
Acquisition Facility means the
Facility described in clause
2.1(b).
Annual Accounts means the audited
Accounts of the Australian
Parent, and the audited
consolidated Accounts of the
Group, for each Financial Year.
Application for Finance means a
document called "Application for
Finance" prepared by the Group
and submitted to the Bank in
December 1997, relating to the
provision of financial
accommodation.
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Auditors means the auditors of the Group from
time to time.
Australian Group means the corporate group
formed by the Australian Parent and its
consolidated subsidiaries.
Australian Parent means the company named at
item 2 of schedule 1.
Authorised Officer means:
(a) in the case of the Bank, a director, secretary or an
officer whose title contains the word "manager" or a person
performing the functions of any of them; and
(b) in the case of a Group Member or a Security Provider, a
person appointed by that Group Member or that Security Provider
to act as an Authorised Officer under the Documents to which it
is a party.
Benchmark Rate means the Bank's Benchmark
Rate as advertised from time to time in the
Australian Financial Review.
Bill has the same meaning as in the Bills of
Exchange Act 1909 (Cwlth) and a reference to
the drawing or acceptance or endorsement of,
or other dealing with, a Bill is to be
interpreted in accordance with that act.
Break Costs means any liability, loss, costs,
charges or expenses arising from:
(a) the Bank terminating or varying any contractual
arrangements under which the Bank has borrowed or contracted for
funds, or which the Bank has used to fund any amount payable
under the Documents; or
(b) the Bank terminating or varying any Treasury Transaction
which the Bank has entered into with, or for the account of, the
Group.
Business Day means a day (not being a
Saturday or a Sunday) on which banks are open
for general banking business in Sydney.
Certificate of Compliance by Security Provider
means a certificate in the form of schedule 6.
Conditions Precedent means each of the items
listed in schedule 2.
Contingent and/or Unmatured Obligations means
all contingent and/or unmatured obligations of
the Group from time to time including without
limitation:
(a) the face amount of any Bank Guarantees issued by the Bank
at the request of the Group, and which are outstanding from time
to time;
(b) the face amount of any Bill or other negotiable instrument
endorsed, discounted or accepted by the Bank at the
request of the Group, and which are outstanding from time
to time; and
<PAGE>
(c) the net amount which would be payable on any date by the
Group to the Bank under any Treasury Transaction between
the Group and the Bank, calculated as if the Treasury
Transaction was terminated on the date at which the
calculation is made.
Debtor means, in relation to a Group Member,
each other Group Member and each person named
as a New Group Member under clause 21, and:
(a) is a reference to them jointly, each of them severally
and to any two or more of them jointly; and
(b) is a reference to each such person in its personal and
any trustee capacity.
Deed of Release means a document substantially in the form of
schedule 5.
Documents means:
(a) this agreement;
(b) the Security;
(c) each other instrument described in item 4 of schedule 1;
(d) any instrument which a Group Member or a Security
Provider acknowledges to be a Document and any other
instrument connected with any of them,
and includes:
(e) any letter from time to time issued by the Bank to a
Group Member; and
(f) any other document executed by a Group Member
setting out or varying or supplementing the
terms of any Facility or the
terms of any Document.
Dollars, $ and $A means the
lawful currency of Australia.
Encumbrance means any Security
Interest, notice under sections
218 or 255 of the Income Tax
Assessment Act 1936 (Cwlth) or
under section 74 of the Sales
Tax Assessment Act 1992 (Cwlth)
or under any similar provision
of a State, Territory or
Commonwealth law, assignment of
income or monetary claim, and
any agreement to create any of
them or allow them to exist.
Event of Default has the meaning
given to it in clause 14.
Facility means each facility
granted by this agreement, as
amended in writing between the
Bank and a Group Member from
time to time, and Facilities
means all or any of them.
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Facility Schedule means each schedule so
described, forming part of this agreement.
Financial Undertaking means each undertaking
set out in paragraph 1 of schedule 3.
Financial Year means each period of 12 months
ending on 30 September.
Foreign Currency means any foreign currency
approved by the Bank from time to time.
Former Group Member means, subject to clause
22, a Group Member in respect of which the
Bank has executed a Deed of Release.
Group means the corporate group formed by the
Group Members and each Group Member, jointly
and severally, as the context requires.
Group Member means the Australian Parent, each
other Group Member and each New Group Member,
but does not include a Former Group Member.
Guarantee and Indemnity means the interlocking
guarantee and indemnity set out in clauses 15
to 17 and related provisions.
Guaranteed Money means all amounts which at
any time for any reason or circumstance in
connection with any agreement, transaction,
engagement, document, instrument (whether
negotiable or not) event, act, omission,
matter or thing whatsoever, whether at law, in
equity, under statute or otherwise (and
whether or not of a type within the
contemplation of the parties at the date of
the Guarantee and Indemnity):
(a) are payable, are owing but not currently payable, are
contingently owing, or remain unpaid by the Debtor to the
Bank; or
(b) have been advanced or paid by the Bank:
(i) at the express or implied request of the Debtor; or
(ii) on behalf of the Debtor; or
(c) have been advanced or paid by the Bank or which the Bank
is liable to pay by reason of any act or omission of the
Debtor.
This definition applies:
(i) irrespective of the capacity of the Debtor or the
Bank;
(ii) whether the Debtor or Bank is liable as principal
debtor or surety or otherwise;
(iii)whether the Debtor is liable alone, or jointly, or
jointly and severally with another person;
<PAGE>
(iv) whether the Bank is the original obligee (or an
assignee of the Guaranteed Money with the consent
or awareness of the Debtor); and
(v) whether the Bank is the original obligee or an
assignee of the original obligee and whether or not
the Group Member or Debtor consented to or was
aware of the assignment.
Guarantor means each person named in schedule
1 as the Group Member and each person who
joins this guarantee under clause 21 but does
not include a person who is released from the
Guarantee and Indemnity. When two or more
persons are named, a reference to "Guarantor"
is a reference to them jointly and each of
them severally.
Half-Yearly Accounts means the unaudited
unconsolidated Accounts of the Australian
Parent and each Group Member for the 6 months
ending 31 March in each year.
Hedging Undertaking means the undertaking
described as such in schedule 3.
Increased Costs Event means either:
(a) the introduction or commencement (after the date of this
agreement) of, or any change in, or in the
interpretation, application or administration of; or
(b) the compliance by, or a change in the method of
compliance by the Bank, with,
any law, regulation, order, official policy,
directive, request, requirement or guideline
of any central bank or government or any
governmental, fiscal, monetary, supervisory or
other authority, whether or not having the
force of law but if not having the force of
law, compliance with which is in accordance
with prudent banking practice (including,
without limitation, any form of reserve
requirement, statutory reserve deposit,
special deposit, variable deposit ratio,
capital adequacy ratio, equity ratio,
liquidity ratio, liabilities ratio or other
requirement or restriction).
Insolvency Event means the happening of any of
these events:
(a) an order or an order is made that a Group Member or a
Security Provider be wound up, or an application is made
to a court for such an order (other than an application
which the Bank is satisfied is frivolous or vexatious, or
which is refused, dismissed or stayed within 14 days); or
(b) a liquidator or provisional liquidator is appointed in
respect of a Group Member or a Security Provider, or an
application is made to a court for such an order (other
than an application which the Bank is satisfied is
frivolous or vexatious, or which is refused, dismissed or
stayed within 14 days); or
<PAGE>
(c) except to reconstruct or amalgamate while solvent, on
terms approved by the Bank, a Group Member or a Security
Provider enters into, or resolves to enter into, a scheme
of arrangement, deed of company arrangement or
composition with, or assignment for the benefit of, all
or any class of its creditors, or it proposes a
reorganisation, moratorium or other administration
involving any of them; or
(d) a Group Member or a Security Provider is wound up or
dissolved or resolves to wind itself up, or otherwise
dissolve itself, or gives notice of intention to do so,
except to reconstruct or amalgamate while solvent on
terms approved by the Bank; or
(e) a Group Member or a Security Provider is or states that
it is unable to pay its debts when they fall due; or
(f) as a result of the operation of section 459F(1) of the
Corporations Law, a Group Member or a Security Provider
is taken to have failed to comply with a statutory demand
; or
(g) a Group Member or a Security Provider takes any step to
obtain protection or is granted protection from its
creditors, under any applicable legislation or an
administrator is appointed to a Group Member or a
Security Provider; or
(h) a person becomes insolvent under administration as
defined in section 9 of the Corporations Law or action is
taken which could result in that event; or
(i) anything analogous or having a substantially similar
effect to any of the events specified above happens under
the law of any applicable jurisdiction.
Joinder Certificate means a certificate
substantially in the form of schedule 4
executed by the Australian Parent on behalf
of the Group, and by the Bank and the New
Group Member.
Limit means:
(a) in relation to the Multi-option Facility, A$30,000,000;
(b) in relation to the Acquisition Facility, A$120,000,000;
and
(c) in relation to the Transactional Facility,
A$2,000,000, each as reduced from time to time in
accordance with this agreement.
Money Outstanding means all obligations and
liabilities of the Group to the
Bank whether or not then due and
payable and includes the amount
of any Contingent and/or
Unmatured Obligations of the
Group to the Bank.
Multi-option Facility means the
Facility described in clause
2.1(a).
<PAGE>
Negative Pledge means the undertaking
described as such in schedule 3.
New Group Member means, subject to clause 21,
a company or other entity which after the date
of this agreement becomes owned or controlled
by a Group Member.
Olympic means Olympic Amusements Pty Limited
(ACN 005 903 606) trading as Olympic Video
Gaming.
Permitted Security Interest means:
(a) each Security;
(b) any Security Interest existing at the date of this
agreement and described in item 5 of schedule 1;
(c) any Security Interest notified by the Bank to the
Australian Parent as being a Permitted Security Interest
for the purpose of this agreement;
(d) any Security Interest over any asset acquired by the
Group after the date of this agreement, which exists at
the Acquisition Date, provided that the Security Interest
was not entered into in contemplation of the acquisition;
(e) any Security Interest over any of the assets or revenues
of a New Group Member, which exists at the Acquisition
Date, provided that the Security Interest was not created
in contemplation of it becoming a New Group Member; and
(f) any lien arising in the ordinary course of business of a
Group Member, where:
(i) the relevant amount is not yet due; or
(ii) the Group Member is not in default of its
obligations which gave rise to the lien; or
(iii)the relevant amount is being contested in good
faith by appropriate proceedings; and
(g) any title retention arrangements relating to the
acquisition of trading stock by the Group, arising in the
ordinary course of business, where:
(i) the relevant amount is not yet due; or
(ii) the Group is not in default of its obligations in
relation to it; or
(iii)the relevant amount is being contested in good
faith by appropriate proceedings.
Related Entity of an entity means another
entity which is related to the first within
the meaning of section 50 of the Corporations
<PAGE>
Law or is in any economic entity (as defined
in any approved accounting standard) which
contains the first.
Potential Event of Default means an event
omission or circumstance which if not
rectified, resolved or settled would result in
the occurrence of an Event of Default.
Repayment Date in respect of a Facility means
the date specified in the relevant Facility
Schedule as the repayment date or expiry date,
or a later date agreed between the Bank and
the Australian Parent.
Security means each instrument or transaction
described in item 3 of schedule 1 and any
instrument or Security Interest at any time
collateral to any of them, and any other
instruments or documents from time to time
held by the Bank securing the obligations of a
Group Member to the Bank under the Documents.
Security Interest means any bill of sale (as
defined in any statute), mortgage, charge,
lien, pledge, hypothecation, title retention
arrangement , trust or power, as or in effect
as security for the payment of a monetary
obligation or the observance of any other
obligation, and includes any arrangement with
any creditor under which the claims of that
creditor may be satisfied prior to any other
creditor, or may be satisfied with (or from
the proceeds of) any present or future
property, asset or revenue of the Group.
Security Provider means each person who gives
a Security (whether or not that person is a
Group Member).
Subordinated Debt Cover means the amount of
A$30,000,000 described in Specific Condition
Precedent 4(i) in schedule 2, as reduced in
accordance with the Subordination Agreement.
Subordination Agreement means an agreement in
form and substance satisfactory to the Bank by
which the US Parent agrees to lend money or
invest quasi-equity into the Group on terms
where the US Parent's rights to receive
interest or other return on investment, and
principal, are subordinated to the rights of
the Bank.
Subsidiary of an entity means another entity
which is a subsidiary of the first within the
meaning of part 1.2 division 6 of the
Corporations Law or is a subsidiary of or
otherwise controlled by the first within the
meaning of any approved accounting standard.
Taxes means taxes, levies, imposts,
deductions, charges, withholdings and duties
imposed by any authority (including, without
limitation, 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 the Bank.
Transactional Facility means the Facility
described in clause 2.1(c).
Treasury Transaction includes, without
limitation, any interest rate or currency
forward rate agreement, swap, financial
option, futures contract, currency exchange
<PAGE>
agreement, and any similar type of interest
rate or currency risk management or forward
purchase or sale agreement.
US Parent means International Game
Technology.
1.2 In this agreement unless the contrary intention appears:
(a) a reference to this agreement or another instrument
includes any variation or replacement of any of them; and
(b) a reference to an agreement includes any guarantee,
undertaking, deed or legally enforceable arrangement
whether or not in writing and a reference to a document
includes an agreement in writing, a certificate, notice,
instrument or document of any kind; and
(c) a reference to a statute, ordinance, code or other law
includes regulations and other instruments under it and
consolidations, amendments, re-enactments or replacements
of any of them; and
(d) the singular includes the plural and vice versa; and
(e) the word "person" includes a firm, body corporate, an
unincorporated association or an authority; and
(f) a reference to a person includes a reference to the
person's executors, administrators, successors,
substitutes (including, without limitation, persons
taking by novation) and assigns; and
(g) an agreement, representation or warranty in favour of two
or more persons is for the benefit of them jointly and
severally; and
(h) an agreement, representation or warranty on the part of
two or more persons binds them jointly and severally; and
(i) a reference to any thing (including, without limitation,
any amount) is a reference to the whole and each part of
it and a reference to a group of persons is a reference
to all of them collectively, to any two or more of
them collectively and to each of them individually; and
(j) a reference to any accounting term will be interpreted
(and calculated) in the manner required by the Accounting
Standards; and
(k) the schedules to this agreement form part of it and a
reference to this agreement includes the schedules.
Headings
1.3 Headings are inserted for convenience and do not affect the
interpretation of this agreement.
<PAGE>
Repay and prepay
1.4 Repay and cognate expressions includes:
(a) in relation to any Facility where the accommodation is
made available by the acceptance and/or discount of
Bills, the retirement of Bills in the relevant amount on
a Rollover Date, and the payment to the Bank on the
relevant date of all amounts owing to it in relation to
those Bills, in accordance with this agreement;
(b) in relation to any Facility where the accommodation is
made available by the issuance of a letter of credit or
bank guarantee, the retirement of letters of credit and/
or bank guarantees of the relevant face value and the
payment to the Bank on the relevant date of all amounts
owing to it in relation to those instruments, in
accordance with this agreement, or the payment to the
bank of cash collateral in respect of unexpired
instruments in the relevant amount.
1.5 Prepay and cognate expressions includes:
(a) in the case of Bills outstanding, the deposit with the
Bank of an amount equal to the face value thereof, which
amount will be held in an interest-bearing account by the
Bank, and applied towards meeting maturing Bills; and
(b) in the case of standby letters of credit, bank guarantees
and documentary letters of credit outstanding, either the
return to the Bank of the relevant instrument (which the
Bank must then cancel) or else the deposit with the Bank
an amount equal to the face value thereof, which, amount
will be held in an interestbearing account by the Bank,
and applied towards meeting amounts drawn under the
standby letters of credit, bank guarantees or documentary
letters of credit.
Amendments
1.6 This agreement may not be amended, nor may a New Group
Member be added or a Group Member released, without the prior
written consent of the US Parent.
2. The Facilities
The Facilities
2.1 The Bank grants the following facilities:
(a) Multi-option Facility: to each Group Member, a revolving
Multi-option Facility with a global limit of A$30,000,000
comprising:
(i) an overdraft facility, on the terms set out in
schedule 8;
(ii) a bill acceptance and discount facility on the
terms set out in schedule 9;
<PAGE>
(iii)a letters of credit/guarantees by bank facility on
the terms set out in schedule 10; and
(iv) an equipment leasing facility, on terms to be
agreed between the Australian Parent and the Bank
in writing from time to time (which agreement does
not require the prior written consent of the US
Parent, despite clause 1.6); and
(b) Acquisition Facility: an Acquisition Facility with a
limit of A$120,000,000, on the terms set out in schedule
11; and
(c) Transactional Facility: a Transactional Facility as
described in schedule 12, on the terms set out in that
schedule.
Uncommitted Facilities
2.2 The Bank may in its discretion grant to each Group Member
uncommitted treasury facilities on such terms as the Bank sees
fit.
Use of Facilities
2.3 If a Group Member wants to use a Facility it may only do so
in accordance with the terms applicable to that Facility.
Limits
2.4 No Facility may be utilised if the Money Outstanding in
relation to that Facility exceeds or would exceed the Limit
for that Facility. To avoid doubt, the Limit of A$30,000,000
in relation to the Multi-option Facility is a global limit and
applies in respect of the aggregate Money Outstanding under
the sub-facilities described in clause 2.1(a)(i), (ii), (iii)
and (iv).
Availability of Multi-option Facility subject to annual review
2.5 The Group acknowledges that the Bank will review the Multi
option Facility annually. As a result of that review, the
Bank may decide to:
(a) discontinue that facility, in whole or in part; and/or
(b) change the pricing relating to that facility; and/or
(c) require further or additional security in relation to
that facility; and/or
(d) otherwise vary the terms on which that facility is made
available.
If the Bank decides any of those things, it
will notify the Group in writing a reasonable
time after completion of the review ("Review
Notice"). Subject to clause 1.6, the Group
must comply with a Review Notice in the time
required by the Bank or, at its option, the
Group may cancel the Multi-option Facility and
prepay all Money Outstanding in respect of it
within 14 days after receiving the Review
Notice. So long as no Event of Default
occurs, the Bank will not take any enforcement
action in respect of the relevant Money
Outstanding during the 14 day notice period.
<PAGE>
3. Conditions precedent and subsequent
Conditions precedent
3.1 The Bank will not make the Facilities available to the
Group until it has received the Conditions Precedent in form
and substance satisfactory to the Bank.
3.2 A Condition Precedent which is required to be certified
must be certified by an Authorised Officer of the Australian
Parent or the relevant Security Provider as being true and
complete as at a date no earlier than 2 days (or a longer
period if the Bank agrees) prior to the date of first use of
the Facilities.
3.3 Without limiting clause 3.1, the Bank need not provide any
financial accommodation under this agreement unless:
(a) the representations and warranties in clause 11 are
correct and not misleading at the date of the provision
of that financial accommodation; and
(b) no Event of Default or event which with the giving of
notice or lapse of time would be likely to become an
Event of Default continues unremedied or would result
from the provision of that financial accommodation; and
(c) the Bank has received the other approvals, valuations,
opinions or documents which it has reasonably requested.
Conditions subsequent
3.4 The Group must deliver the following things to the Bank
before the respective times shown:
(a) by 3:00pm (Sydney time) on the 30th day after the date of
this agreement:
(i) a legal opinion from United States counsel
reasonably satisfactory to the Bank in respect of
the US Parent's guarantee and indemnity and its
participation in the Subordination Agreement and
related matters; and
(ii) a legal opinion from Bell Gully reasonably
satisfactory to the Bank in respect of the
participation by IGT (New Zealand) Limited in this
agreement and related matters; and
(b) by 3:00pm (Sydney time) on the 45th day after the date of
this agreement, a certificate signed by 2 directors or a
director and secretary of the Australian Parent stating
that the Group is in compliance with the Hedging
Undertaking.
4. Facilities may be provided to a non-Group Member
4.1 Subject to clause 1.6, if the Australian Parent so
requests, any Facility may be made available to any nominated
<PAGE>
member of the Group who is not a party to this agreement. A
request under this clause 4.1 may be made in the form of
schedule 7.
4.2 Upon request, the Bank will advise the terms upon which a
Facility may be made available to a member of the Group who is
not a party to this agreement under clause 4.1, including any
consents and other documentation which may be required. The
nominated company must become a party to this agreement, and
must join any guarantee and (unless the Bank otherwise agrees)
any Security Interest given by the Group to the Bank.
4.3 The Bank is not obliged to agree to a request under clause
4.1.
5. Interest on unpaid amounts
5.1 The Group agrees to pay interest to the Bank on any amount
payable by it under the Documents from when it becomes due for
payment during the period that it remains unpaid, on demand or
at times determined by the Bank, calculated on daily balances.
The rate to be applied to each daily balance is the rate 2%
p.a. above the Benchmark Rate.
5.2 Interest payable under clause 5.1 which is not paid when
due for payment may be capitalised by the Bank at intervals
which the Bank determines from time to time or, if no
determination is made, then on the first day of each month.
Interest is payable on capitalised interest at the rate and in
the manner referred to in clause 5.1.
5.3 The Group's obligation to pay the outstanding amount on the
date it becomes due for payment is not affected by clauses 5.1
and 5.2.
5.4 If a liability under this agreement becomes merged in a
judgment or order, then the Group agrees to pay interest to
the Bank on the amount of that liability as an independent
obligation. This interest accrues from the date the liability
becomes due for payment both before and after the judgment or
order until it is paid, at a rate that is the higher of the
rate payable under the judgment or order and the rate referred
to in clause 5.1.
6. Repayment and payments
Repayment generally
6.1 The Group agrees to repay the Money Outstanding in respect
of the relevant Facility on the Repayment Dates and in the
manner specified in the relevant Facility Schedule.
Repayment and amortisation of Acquisition Facility
6.2 In respect of the Acquisition Facility:
(a) the Limit reduces, and payments must be made and Bills
retired, to ensure that, on each of the dates shown in
Column 1 of the table shown under "Repayment Dates" in
schedule 11, the
<PAGE>
face value of Bills outstanding under the Acquisition
Facility does not exceed the respective amounts shown in
Column 2
of that table; and
(b) the Australian Parent must ensure, to the extent it is
legally able to do so, that the minimum Subordinated Debt
Cover is at least:
(i) A$30,000,000 form the date of this agreement until
29 September 1999; and
(ii) thereafter, the amount shown in Column 3 of the
table shown under "Repayment Dates" in schedule 11
for the period beginning on the respective date
shown in Column 1 of that table until the next such
date.
Manner of payment
6.3 The Group agrees to make payments to the Bank under each
Document not later than 1.00pm local time in the place of
payment on the due date in immediately available funds to the
account of the Bank at the branch which the Bank designates by
notice to the Australian Parent.
6.4 If a payment becomes due for payment on a day which is not
a Business Day, then the date for payment is the next Business
Day.
6.5 The Group agrees to make payments under each Document
without set-off or counterclaim and free and clear of any
withholding or deduction for Taxes unless prohibited by law.
Currency conversion
6.6 If an amount is due in a currency and the Bank receives
payment in another currency, then the Bank may convert the
amount received into the due currency at the spot rate at
which the Bank is able to purchase the due currency with the
amount received at the time of its receipt. The Group
satisfies its obligation to pay in the due currency only to
the extent of the amount of the due currency purchased after
deducting costs of conversion. The Group acknowledges that it
may be necessary for the Bank to convert amounts received
through a currency other than the due currency to ascertain
the equivalent in the due currency of the amount received.
7. Fees
Establishment fee
7.1 On the date of this agreement, the Group must pay to the
Bank an establishment fee of $50,000.
Facility Schedules
7.2 The Group agrees to pay to the Bank the fees specified in
respect of each Facility on the dates specified in the
relevant Facility Schedule.
Specific fees
7.3 In addition to any fees set out in the Facility Schedules,
a Facility Fee and Activation Fee and Commitment Fee are
payable
<PAGE>
quarterly in advance as at the last day of March, June,
September and December each year, calculated by reference to
the following table, based on the Standard & Poor's Ratings
Service senior debt rating current for the US Parent as at the
first day of the relevant fee period:
<TABLE>
<CAPTION>
Rating Multi-option Multi-option Acquisition
Facility Facility Facility
Facility Fee Activation Commitment
Fee Fee
<S> <C> <C> <C>
A- or greater 0.100% 0.325% 0.325%
BBB+ 0.100% 0.350% 0.350%
BBB 0.125% 0.400% 0.425%
BBB- 0.150% 0.450% 0.500%
BB+ or less 0.250% 0.525% 0.675%
</TABLE>
where:
(a) the Facility Fee is calculated on the Limit of the Multi
option Facility, from the date of this agreement;
(b) the Activation Fee is calculated by reference to the face
or principal amount of the part of the sub-Facilities in
the Multi-option Facility activated or utilised at any
time, from the date of activation; and
(c) the Commitment Fee is calculated on the Limit of the
Acquisition Facility, from the date of this agreement.
8. Cancellation and prepayment
Cancellation
8.1 The Group may cancel any of the Facilities in whole or in
part by the Australian Parent giving at least 14 days' notice
to the Bank. If only part of a Facility is cancelled it must
be at least A$5,000,000 and a whole multiple of A$1,000,000.
The notice is irrevocable.
Prepayment
8.2 The Group may prepay any money payable to the Bank under
any of the Facilities in whole or in part on the last day of
its then current Interest Period on giving at least 5 days'
notice
to the Bank. The prepayment may be made without premium or
penalty, unless the interest rate of that Facility has been
fixed for a period which continues after the date of that
repayment.
If only part of a Drawing is prepaid it must
be at least A$5,000,000 and a whole multiple
of A$1,000,000. The notice is irrevocable and
constitutes an obligation to prepay in
accordance with the notice. The Limit of the
Facility will be reduced by the amounts
prepaid under this clause 8.2 unless the
relevant Facility Schedule states otherwise.
Any amounts so prepaid will bear interest up
<PAGE>
to the date of prepayment. Amounts prepaid on
the Acquisition Facility will be applied in
reverse chronological order of payment.
In relation to prepayments involving
outstanding Bills, letters of credit and bank
guarantees, clause 1.5 applies.
9. Taxes
If a law requires a Group Member to withhold
or deduct Taxes from a payment so that the
Bank would not actually receive for its own
benefit on the due date the full amount
provided for under a Document, then:
(a) the amount payable is increased so that, after making
that deduction and deductions applicable to additional
amounts payable under this clause, the Bank is entitled
to receive the amount it would have received if no
deductions had been required; and
(b) the Group Member must make the deductions; and
(c) the Group Member must pay the full amount deducted to the
relevant authority in accordance with applicable law and
deliver the original receipts to the Bank.
10. Increased costs and illegality
10.1 This clause will apply if, as a result of an Increased
Costs Event, the Bank, acting reasonably, determines that:
(a) there is any direct or indirect increase in the cost to
the Bank of providing, agreeing to provide, maintaining
its commitment to provide, funding or maintaining
financial accommodation under the Documents; or
(b) there is any direct or indirect reduction in any amount
received or receivable by the Bank or in the effective
return to the Bank in connection with financial
accommodation provided or to be provided under the
Documents (including, without limitation, the return on
the Bank's overall capital which could have been achieved
but for the occurrence of the Increased Costs Event); or
(c) the Bank is required to make a payment or to forgo
interest or other return on or calculated by reference to
an amount received or receivable under the Documents.
In that case, the Group agrees to pay the
Bank on demand additional amounts which the Bank certifies are
necessary to compensate the Bank for the increased cost,
reduction, payment or forgone interest or other return.
However, the parties will also commence negotiations under
clause 26.
10.2 If the increased cost, reduction, payment or forgone
interest or other return is indirect then, subject to clause
26,
<PAGE>
the Group agrees to pay the Bank the proportion of it which
the Bank determines to be fairly attributable to the financial
accommodation made under the Documents.
10.3 In determining additional amounts payable under this clause
10 the Bank may use averaging and attribution methods commonly
used by the Bank or any other reasonable averaging or
attribution method.
10.4 If at any time after the date of this agreement the Bank
determines that it is (or has become apparent that it will
become) contrary to an official directive, or impossible or
illegal, for the Bank to fund, provide or maintain a Facility
or otherwise observe its obligations under this agreement, as
a result of any change in a law, regulation or an official
directive which has the force of law or compliance with which
is in accordance with the practice of responsible bankers in
the jurisdiction concerned, or in their interpretation or
administration, then:
(a) the Bank will notify the Australian Parent; and
(b) clause 26 will apply.
11. Representations and warranties
11.1 Each Group Member represents and warrants that:
(a) (incorporation) it has been duly incorporated as a
company limited by shares in accordance with the laws of
its place of incorporation, is validly existing under
those laws and has power and authority to carry on its
business as it is now being conducted; and
(b) (power) it has power to enter into and observe its
obligations under the Documents; and
(c) (authorisations) subject to stamping and registration (if
applicable), it has in full force and effect the
authorisations necessary to enter into the Documents,
observe obligations under them and allow them to be
enforced; and
(d) (valid and binding obligations) subject to stamping and
registration (if applicable), its obligations under the
Documents are valid and binding and are enforceable
against it in accordance with their terms subject to any
applicable insolvency and other similar laws affecting
creditors' rights generally; and
(e) (no breach of law or power) the Documents to which it is
a party and the transactions under them do not contravene
its constituent documents or any law, regulation or
official directive or any of its obligations or
undertakings by which it or any of its assets are bound
or cause a limitation on its powers or the powers of its
directors to be exceeded; and
<PAGE>
(f) (Accounts true and fair) the most recent audited Accounts
of the Group Member and audited consolidated Accounts of
the Group are a true and fair statement of its financial
position and their consolidated financial position as at
the date to which they are prepared and disclose or
reflect all their actual and contingent liabilities; and
(g) (no material adverse change) except as notified to the
Bank in writing before the date of this agreement, there
has been no material adverse change in the financial
position of the Group Member or in the consolidated
financial position of the Group since the date to which
the audited Accounts of the Company and the audited
consolidated Accounts of the Group were last prepared
before the date of this agreement; and
(h) (disclosure) at the time it is given, the information
given by it and the US Parent to the Bank in connection
with the Facilities is true and accurate in all material
respects and is not misleading by statement or omission,
and the Group Members have not failed to disclose any
information which is material to the assessment of the
financial position of any Group Member or
Security Provider; and
(i) (no Event of Default) to the best of its knowledge and
belief after making reasonable enquiries, no Event of
Default or event which with the giving of notice or lapse
of time would be likely to become an Event of Default
continues unremedied being a default which might
materially adversely affect the ability of the Group
Member to perform its obligations under the Documents, or
which might materially adversely affect the value of the
Security held by the Bank; and
(j) (no legal default) to the best of its knowledge and
belief after making reasonable enquiries, it is not in
default under a law, regulation, official directive,
instrument, undertaking or obligation affecting it or its
assets, being a default which might materially adversely
affect its ability to perform its obligations under the
Documents or might materially adversely affect the value
of the Security held by the Bank; and
(k) (no material litigation) except as notified to the Bank
in writing and agreed to by the Bank, to the best of its
knowledge and belief there is no pending or threatened
action or proceeding detrimentally affecting it or any of
its assets before a court, governmental agency,
commission or arbitrator which involves an amount in
excess of $1,000,000; and
(l) (no immunity) to the best of its knowledge and belief
after making reasonable enquiries, it does not have
immunity from the jurisdiction of a court or from legal
process (whether through service of notice, attachment
prior to judgment, attachment in aid of execution,
execution or otherwise); and
<PAGE>
(m) (no undisclosed trusts) except if stated at item 6 of
schedule 1, it does not enter into any Document in the
capacity of a trustee of any trust or settlement; and
(n) (no Encumbrances except Permitted Security Interests)
it is the beneficial owner of and has good title to all
property held by it or on its behalf and all undertakings
carried on by it free of Encumbrances other than Permitted
Security Interests; and
(o) (corporate benefit) it benefits by executing the Documents
to which it is a party; and
(p) (certificate true) the certification given by an
Authorized Officer of the Australian Parent under clause
3.2 is true and complete; and
(q) (solvent) it is solvent and will not become insolvent by
entering into and performing obligations under the
Documents; and
(r) (total assets test) the Group Members which are party to
this agreement together hold at least 90% of the total
assets of the Australian Group.
11.2 These representations and warranties (other than those in
clause 11.1(o) and (p)) are taken to be also made on the last
day of each calendar quarter during the continuation of the
Facilities subject to such disclosures as may have been made
by any Company to the Bank and agreed to by the Bank.
12. General undertakings
Each Group Member undertakes at all times to:
(a) (books of account) ensure that the Group keeps proper and
adequate books of account; and
(b) (maintain authorisations) obtain, renew on time and
comply with the terms of each authorisation necessary to
enter into the Documents, observe obligations under them
and allow them to be enforced; and
(c) (Foreign Currency Facility) if a Facility is made
available in a Foreign Currency, and if the Money
Outstanding in that Foreign Currency (if converted into
Australian Dollars) would exceed the limit of the
relevant Facility (expressed in Australian dollars) upon
request prepay a part of that Facility, or provide the
Bank with additional security acceptable to the Bank; and
(d) (comply with Undertakings Schedule) comply with the
undertakings set forth in schedule 3.
<PAGE>
13. Reporting and information undertakings
13.1 The Australian Parent undertakes to:
(a) (Annual Accounts) give to the Bank the Annual Accounts of
the Group and for the US Parent for each Financial Year
no later than 120 days after the end of the Financial
Year;
(b) (Half-Yearly Accounts) give to the Bank the Half-Yearly
Accounts of the Group and for the US Parent no later than
90 days after the end of the relevant half-year period.
The HalfYearly Accounts need not contain any notes,
statements or reports;
(c) (annual compliance certificate) at the time of delivering
each set of Annual Accounts, give to the Bank a
certificate signed by 2 directors or a director and
secretary of the Australian Parent (with supporting
calculations) certifying, in the opinion of those
officers, whether the Group has complied with the
Financial Undertakings and the Negative
Pledge during the Financial Year;
(d) (half-yearly compliance certificate) at the time of
delivering each set of Half-Yearly Accounts, give to the
Bank a certificate signed by 2 directors or a director
and secretary of the Australian Parent (with supporting
calculations) certifying, in the opinion of those
officers, whether the Group has complied with the
Financial Undertakings during the period to which the
Half-Yearly Accounts relate;
(e) (quarterly compliance certificate) in the third month
after each set of Annual Accounts and Half-Yearly
Accounts are delivered, give to the Bank a certificate
signed by 2 directors or a director and secretary of the
Australian Parent (with supporting calculations)
certifying, in the opinion of those officers, whether the
Group has complied with the Financial Undertakings during
the quarterly period immediately following the period to
which the Annual Accounts or Half-Yearly Accounts (as the
case may be) relate;
(f) (other information) give promptly to the Bank any other
information relating to the financial condition, business
or assets of Group and supporting evidence that the Bank
reasonably requests from time to time;
(g) (Notify breach of representations) notify the Bank
promptly upon becoming aware that any representation or
warranty made or deemed to be repeated by or on behalf of
any Group Member in connection with a Document is
incorrect or misleading when made or deemed to be
repeated;
(h) (Notify Event of Default and Potential Event of Default)
notify the Bank promptly after it becomes aware of full
details of an Event of Default or a Potential Event of
Default, and the steps taken to remedy it;
<PAGE>
(i) (Off-balance sheet structures) promptly notify the Bank
of any off balance sheet investment, and any tax
effective structure, in which the Group has any direct or
indirect interest;
(j) (proposed acquisition of New Group Member) notify the
Bank of any proposed acquisition of a New Group Member,
at least 30 days before the acquisition is to occur and,
if requested by the Bank cause the New Group Member to
become a party to this agreement under clause 21;
(k) (Related Entity) notify the Bank if another company or
other entity incorporated or formed in Australia or New
Zealand becomes a Related Entity of the Australian Parent
or any Group Member;
(l) (material change to memorandum and articles of
association) notify the Bank of any proposed material
change to the memorandum and articles of association, or
other constituent documents, of a Group Member, at least
30 days before the change is to be made; and
(m) (notify contingent liabilities and leases) when giving to
the Bank the Half-Yearly Accounts and the Annual Accounts
give to the Bank details of the Group's contingent
liabilities and leases as reasonably requested by the
Bank.
Annual Accounts to include forecasts
13.2 The Annual Accounts of the Group must include cash flow,
profit and loss, balance sheet and capital expenditure
forecasts, which are to be in a format consistent with that
set out in the Application for Finance.
Accounts to include actual-to-budget performance report
13.3 The Group must deliver with each set of Annual Accounts and
Half-Yearly Accounts a profit and loss report showing semi
annual actual performance against the budget set out in the
forecasts provided in accordance with clause 13.2.
14. Events of Default
14.1 An Event of Default occurs if:
(a) (non payment) the Group does not pay any money payable
under any Document:
(i) on the due date, in the case of principal; or
(ii) within 2 Business Days after the due date, in the
case of interest and fees; or
(iii)within 5 Business Days after demand by the Bank, in
the case of other moneys payable by the Group
Member to the Bank under the Documents; or
<PAGE>
(b) (breach of Financial Undertaking) subject to clause 14.6,
the Group does not comply at any time with a Financial
Undertaking; or
(c) (other breach) the Group or a Security Provider does not
observe any other obligation under any Document and, if
the nonobservance can be remedied:
(i) does not remedy the non-observance within seven
days after receiving a notice from the Bank, or
(ii) does not remedy the non-observance within 14 days
after receiving notice from the Bank if at the end
of seven days after receiving that notice the
Australian Parent satisfies the Bank (acting
reasonably) that:
(A) the Group or the Security Provider is
diligently remedying the non-observance; and
(B) the non-observance will be remedied in a
timely fashion; or
(d) (cross default) any present or future monetary obligation
in excess of $1,000,000 of the Group:
(i) in connection with money borrowed or raised by any
of them, or any finance lease, redeemable
preference share, letter of credit, interest rate
swap, currency swap, financial option, futures
contract or currency exchange agreement to
which any of them is party:
(A) is not satisfied on time or
at the end of its period of
grace; or
(B) becomes prematurely payable,
or can be rendered
prematurely payable by the giving of notice,
lapse of time or fulfilment of a condition;
or
(ii) to guarantee or indemnify against loss in
connection with money borrowed or raised is not
discharged at maturity or when called; or
(e) (enforcement of judgement) distress is levied or a
judgment, order or Encumbrance is enforced, or becomes
enforceable against any property of the Group with a
value in excess of $1,000,000; or
(f) (incorrect representation or warranty) a representation
or warranty made or taken to be made by or on behalf of
the Group or a Security Provider in connection with a
Document is found or is notified by the Group or a
Security Provider to be incorrect or misleading in a
material respect when made or taken to be made; or
<PAGE>
(g) (Insolvency Event) an Insolvency Event occurs in respect
of the Group, the US Parent or a Security Provider; or
(h) (appointment of controller) subject to clause 14.7, a
controller (as defined in the Corporations Law) is
appointed in respect of any part of the property of the
Group or the US Parent; or
(i) (Group stops payment) the Group or the US Parent 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 the Bank; or
(j) (reduction of capital, share buy back) except for the
redemption of redeemable shares in accordance with their
terms of issue, any Group Member takes action to reduce
its capital or buy back any of its ordinary shares or
passes a resolution referred to in section 188(2) of the
Corporations Law, in any case without the consent of the
Bank; or
(k) (investigation) a person is appointed under legislation to
investigate or manage any part of the affairs of the Group
and in the reasonable opinion of the Bank the outcome of
the investigation is likely to materially adversely affect
the ability of the Group to perform its obligations under
the Documents, or the value of the Security held by the
Bank; or
(l) (void Document) a Document is or becomes wholly or partly
void, voidable or unenforceable, or is claimed to be so by
the Group or by a Security Provider by anyone on its
behalf; or
(m) (material adverse change) a change occurs in a circumstance
which is warranted or taken to be warranted under this
agreement to exist or in the business, assets or financial
condition of a Group Member or a Security Provider, or of
the Group taken as a whole, which in any case in the
reasonable opinion of the Bank has or is likely to have a
material adverse effect on the ability of the Group Member
or a Security Provider to observe its obligations under a
Document or on the value of the Security to the Bank; or
(n) (Security enforceable) any event occurs which gives the
Bank the right to enforce a Security; or
(o) (similar events) anything having a substantially similar
effect to any of the events specified in clauses 14.1(g)-
(k) inclusive happens under the law of any applicable
jurisdiction; or
(p) (class order guarantee) a Group Member or a Security
Provider enters into a deed of cross guarantee pursuant to
the Class Orders made by the Australian Securities
Commission on 19 December 1991 known as ASC Instrument
91/996; or
<PAGE>
(q) (condition subsequent) the Group does not comply with a
condition subsequent under clause 3.4; or
(r) (Subordinated Debt Cover) the minimum Subordinated Debt
Cover is not at least the amount required under clause
6.2(b) on any relevant date.
14.2 If an Event of Default occurs then the Bank may declare at
any time by notice to the Australian Parent that the Money
Outstanding is either:
(a) payable on demand; or
(b) immediately due and payable.
The Bank may make either or both of these
declarations. The making of either of them
gives immediate effect to its provisions.
Contingent and/or unmatured Obligations
14.3 If, on the day when the Group makes the payment required
under clause 14.2 there are any Contingent and/or Unmatured
Obligations of the Group to the Bank, and there is a surplus
not required to meet the Moneys Outstanding which are then due
and payable by the Group to the Bank, then the Bank will
deposit the surplus in an interest bearing account in the name
of the Australian Parent, on the Bank's usual terms for
deposits of similar size and tenor. The amount standing to
the credit of that account will be applied by the Bank towards
meeting the Contingent and/or Unmatured Obligations of the
Group to the Bank as they fall due.
14.4 If the whole of the Moneys Outstanding have been paid by
the Group to the Bank, and if there are no more Contingent
and/or Unmatured Obligations of the Group to the Bank, then
the Bank will pay to the Australian Parent an amount which the
Bank certifies to be the balance of the Account, including
interest credited to the account (net of the Bank's income tax
liability in respect of that interest if the Bank is required
for good reasons to invest the deposit in a way which creates
such a tax liability).
Potential Events of Default
14.5 If a Potential Event of Default occurs, the Australian
Parent will keep the Bank fully informed of all developments
in resolving the matter.
Review Event for breach of Fixed Charges Cover Ratio or Leverage Ratio
14.6 Despite clause 14.1(b), if:
(a) the Fixed Charges Cover Ratio in paragraph 1(b) of
schedule 3 is breached on or before 30 September 2001;
or
(b) the Leverage Ratio in paragraph 1(d) of schedule 3 is
breached on or before 30 September 1999,
there will not have occurred an Event of
Default unless and until:
<PAGE>
(c) the Bank forms a belief that there has been such a breach
at the relevant time and gives notice to the Australian
Parent accordingly; and
(d) 30 days have passed after the Bank gave that notice; and
(e) the Group has not by the end of that period demonstrated
to the satisfaction of the Bank that that compliance with
that ratio will be achieved by the end of the quarter
which begins after the date the Bank gave that notice, or
has otherwise satisfied the Bank (in its absolute
discretion) as to alternative financial criteria.
Appointment of a controller
14.7 Despite clause 14.1(h), it will not be an Event of Default
if a controller is appointed in respect of any part of the
property of the Group or the US Parent if:
(a) the value of the relevant property is no more than
US$100,000 (or equivalent), or
(b) the Australian Parent satisfies the Bank (acting
reasonably) that the appointment is frivolous or
vexatious or otherwise will be withdrawn, terminated or
overturned by a court of competent jurisdiction within 14
days.
15. Guarantee
Each Group Member unconditionally and
irrevocably guarantees payment to the Bank of
the Guaranteed Money. If the Debtor does not
pay the Guaranteed Money on time and in
accordance with any agreement which imposes
the obligation to pay it, then the Group
Member agrees to pay the Guaranteed Money to
the Bank on demand from the Bank. A demand
may be made at any time and from time to time
after the Debtor has failed to pay the
Guaranteed Money when due, irrespective of
whether demand has been made on the Debtor.
16. Indemnity
16.1 Each Group Member unconditionally and irrevocably
indemnifies the Bank against any loss the Bank suffers
because:
(a) the liability to pay the Guaranteed Money is
unenforceable in whole or in part as a result of lack of
capacity, power or authority or improper exercise of
power or authority; or
(b) an Insolvency Event occurs in respect of the Debtor
(including, without limitation, loss suffered by the Bank
because interest is payable by the Bank to a liquidator
or trustee in bankruptcy of the Debtor as a result of a
claim referred to in clause 29 being made); or
<PAGE>
(c) the Guaranteed Money is not or has never been recoverable
from the Group Member under clause 15, or from the Debtor
because of any other circumstance whatsoever including,
without limitation, any transaction relating to the
Guaranteed Money being void, voidable or unenforceable
and whether or not the Bank knew or should have known
anything about that transaction, but not to the extent
such loss arises directly as a result of the
negligence, fraud or wilful misconduct of the Bank.
16.2 Each Group Member as principal debtor agrees to pay to the
Bank on demand a sum equal to the amount of any loss described
in clause 16.1.
17. Extent of Guarantee and Indemnity
The Guarantee and Indemnity is a continuing
security and extends to all of the Guaranteed
Money and other money payable under the
Guarantee and Indemnity. Each Group Member
waives any right it has of first requiring the
Bank to commence proceedings or enforce any
other right against the Debtor or any other
person before claiming from the Group Member
under the Guarantee and Indemnity.
18. Preservation of Bank's rights
18.1 The liabilities under the Guarantee and Indemnity of the
Group Member as a guarantor, principal debtor or indemnifier
and the rights of the Bank under the Guarantee and Indemnity
are not affected by anything which might otherwise affect them
at law or
in equity including, without limitation, one or more of the
following (whether occurring with or without the consent of a
person):
(a) the Bank or another person granting time or other
indulgence (with or without the imposition of an addi-
tional burden) to, compounding or compromising with or
wholly or partially releasing the Debtor, any other
guarantor or another person in any way;
(b) laches, acquiescence, delay, acts, omissions or mistakes
on the part of the Bank or another person or both the
Bank and another person;
(c) any variation or novation of a right of the Bank or
another person, or material alteration of a document, in
respect of the Debtor, the Group Member or another person
including, without limitation, an increase in the limit
of or other variation in connection with advances or
accommodation;
(d) the transaction of business, expressly or impliedly, with
for or at the request of the Debtor, the Group Member or
another person;
<PAGE>
(e) changes which from time to time may take place in the
membership, name or business of a firm, partnership,
committee or association whether by death, retirement,
admission or otherwise whether or not the Group Member or
another person was a member;
(f) the loss or impairment of a Collateral Security or a
negotiable instrument;
(g) a Security Interest being void, voidable or unenforceable
(h) a person dealing in any way with a Security Interest,
guarantee, judgment or negotiable instrument (including,
without limitation, taking, abandoning or releasing
(wholly or partially), realising, exchanging, varying,
abstaining from perfecting or taking advantage of it);
(i) the death of any person or an Insolvency Event occurring
in respect of any person;
(j) a change in the legal capacity, rights or obligations of
a person;
(k) the fact that a person is a trustee, nominee, joint owner
joint venturer or a member of a partnership, firm or
association;
(l) a judgment against the Debtor or another person;
(m) the receipt of a dividend after an Insolvency Event or
the payment of a sum or sums into the account of the
Debtor or another person at any time (whether received or
paid jointly, jointly and severally or otherwise);
(n) any part of the Guaranteed Money being irrecoverable;
(o) an assignment of rights in connection with the Guaranteed
Money;
(p) the acceptance of repudiation or other termination in
connection with the Guaranteed Money;
(q) the invalidity or unenforceability of an obligation or
liability of a person other than the Group Member;
(r) invalidity or irregularity in the execution of the
Guarantee and Indemnity by the Group Member or any
deficiency in or irregularity in the exercise of the
powers of the Group Member to enter into or observe its
obligations under the Guarantee and Indemnity;
(s) the opening of a new account by the Debtor with the Bank
or another person or the operation of a new account;
(t) any obligation of the Debtor or any other guarantor being
discharged by operation of law or otherwise;
<PAGE>
(u) property secured under a Security Interest being forfeit-
ed extinguished, surrendered, resumed or determined.
18.2 The liability of the Group Member under the Guarantee and
Indemnity is not affected:
(a) because any other person who was intended to enter into
the Guarantee and Indemnity, or otherwise become a co-
surety or coindemnifier for payment of the Guaranteed
Money or other money payable under the Guarantee and
Indemnity has not done so or has not done so effectively;
or
(b) because a person who is a co-surety or co-indemnifier for
payment of the Guaranteed Money or other money payable
under the Guarantee and Indemnity is discharged under an
agreement or under statute or a principle of law or
equity.
19. Suspension of Guarantor's rights
19.1 As long as the Guaranteed Money or other money payable
under the Guarantee and Indemnity remains unpaid, the Group
Member may not without the consent of the Bank:
(a) in reduction of its liability under the Guarantee and
Indemnity, raise a set-off or counterclaim available to
itself, a defence, set-off or counterclaim available to
the Debtor or a co-surety or co-indemnifier against the
Bank or claim a set-off or make a counterclaim against
the Bank; or
(b) if an Insolvency Event occurs in respect of the Debtor or
any other guarantor, make a claim or enforce a right
(including, without limitation, an Security Interest)
against the Debtor or any other guarantor or against
their estate or property; or
(c) prove in competition with the Bank if an Insolvency Event
occurs in respect of the Debtor or any other guarantor
whether in respect of an amount paid by the Group Member
under the Guarantee and Indemnity, in respect of another
amount (including the proceeds of a Security Interest)
applied by the Bank in reduction of the Group Member's
liability under the Guarantee and Indemnity, or other-
wise; or
(d) claim to be entitled by way of contribution, indemnity,
subrogation, marshalling or otherwise to the benefit of a
Security Interest or guarantee or a share in it now or
subsequently held for the Guaranteed Money or other money
payable under the Guarantee and Indemnity.
<PAGE>
20. Interlocking guarantee and release
Interlocking nature
20.1 The Guarantee and Indemnity takes effect as a interlocking
guarantee and interlocking indemnity. It is a separate
guarantee and indemnity in relation to each Debtor as if that
person were:
(a) the only person included in the definition of "Debtor";
and
(b) not itself a guarantor under the Guarantee and Indemnity.
Release of Guarantee and Indemnity
20.2 If the Bank is satisfied that there are no further Moneys
Outstanding and that there is no reasonable possibility that
any payment made to the Bank in connection with the Documents
will be clawed back under laws relating to Insolvency Events,
the Bank will, on request and at the Group's cost, execute a
release of the Group Members from the Guarantee and Indemnity.
21 New Group Members
21.1 The Group must ensure that at all times the Group Members
which are party to this agreement hold at least 90% of the
total assets of the Australian Group.
21.2 Subject to clause 1.6, a member of the Australian Group may
become a party to this agreement ("New Group Party") as
follows:
(a) each present Group Member (and the New Group Party) shall
give to the Bank a Certificate of Compliance by Security
Provider signed by a director and secretary;
(b) the New Group Party and the Australian Parent (on behalf
of each present Group Member) must execute and deliver to
the Bank a Joinder Certificate;
(c) the New Group Party must become a party to any guarantee
(and, unless the Bank otherwise agrees, any Security
Interest) given by the present Group Members to the Bank,
in accordance with the provisions of that guarantee;
(d) the New Group Party must, if requested by the Bank,
execute a certificate under section 206(6) of the
Corporations Law; and
(e) the New Group Party must execute such other documents as
may be required by the Bank in respect of (b) and (c).
(f) Following receipt of the documents referred to in clause
21.2(a) to (e):
(i) the New Group Party shall be deemed to be a party
to this agreement; and
(ii) its rights and obligations and the restrictions
imposed upon it shall be the same in all respects
as if the
<PAGE>
New Group Party had joined in this agreement as a
New Group Party from the date of this agreement;
and
(iii)the rights and obligations and the restrictions
imposed upon the other Group Members shall be the
same in all respects as if the New Group Party had
joined in this agreement as a New
Group Party from the date of this agreement; and
(iv) the New Group Party shall be a Debtor for the
purposes of the Guarantee and Indemnity, and the
rights and obligations and restrictions imposed
upon the Group Members under the Guarantee and
Indemnity in respect of that Debtor shall be
the same in all respects as if the New Group Party
had been named in the Guarantee and Indemnity as a
Debtor as from the date of this agreement.
22. Release of Group Members
22.1 Subject to clause 1.6, a Group Member in which the
Australian Parent ceases to have any legal or beneficial
shareholding interest, or a Group Member which is no longer
required to be a party to this agreement (a "Former Group
Member") may with the written consent of the Bank be released
from this agreement upon the Australian Parent so requesting
in writing. Such request shall be executed by an Authorised
Officer of the Australian Parent (on behalf of the Former
Group Member and each other Group Member).
22.2 If the Bank consents to release the Former Group Member
from this agreement, the Bank shall execute a Deed of Release.
The Former Group Member shall be released with effect from the
date of the Deed of Release.
22.3 The rights of the Bank and the obligations of the remaining
Group Members shall not be affected by the release of the
Former Group Member.
22.4 The Bank's consent will not be withheld unreasonably and,
subject to clause 1.6, it will execute the Deed of Release
when:
(a) the Bank is satisfied that:
(i) all Moneys Outstanding by the Former Group Member
have been paid in full; and
(ii) there are no outstanding Contingent and/or
Unmatured Obligations of the Former Group Member to
the Bank, or security acceptable to the Bank has
been furnished to the Bank for the amount of them;
or
(b) the Bank in its discretion agrees to waive the
requirements of paragraph (a).
<PAGE>
22.5 The Guarantee and Indemnity shall be a continuing
obligation between the Bank and the remaining Group Members.
The rights of the Bank and the obligations of the remaining
Group Members shall not be affected by the release of the
Former Group Member.
23. Change of ownership of a Group Member
23.1 If a person who is not at the date of this agreement a
shareholder in the Australian Parent acquires a legal or
beneficial shareholding in the Australian Parent, or if any
person disposes of a shareholding in the Australian Parent,
then the Australian Parent must promptly notify to the Bank
full details of the change.
23.2 The Australian Parent must notify the Bank of any proposed
disposal of all or greater than 10% of the Group's economic
interest in a Group Member (including an issue of capital by a
Group Member to a non-Group Member) at least 30 days before
the
disposal is to occur.
23.3 Subject to clause 1.6, upon receipt of a notice under this
clause 23, the Bank and the Australian Parent will negotiate
on a best endeavours basis with a view to restructuring the
Facilities on mutually acceptable terms. If mutually
acceptable terms are not agreed within 30 days as a result of
that review, the Bank may decide to:
(a) discontinue any Facility, in whole or in part; and/or
(b) change the pricing relating to any Facility; and/or
(c) require further or additional security in relation to any
Facility; and/or
(d) otherwise vary the terms on which any Facility is made
available, and the Group must comply with any written
demand made by the Bank accordingly.
24. Permitted Security Interests
Permitted Security Interests over new assets
24.1 If the Group acquires an asset over which there is a
Permitted Security Interest, the Australian Parent undertakes
that, except with the prior consent of the Bank:
(a) it will promptly notify details to the Bank;
(b) the maturity date of any financial obligation secured by
that Permitted Security Interest will not be extended
beyond the date of its maturity as at the Acquisition
Date;
(c) if the Permitted Security Interest secures any financial
obligation which does not have a fixed maturity date as
at the Acquisition Date, then that Permitted Security
Interest will be discharged and released as soon as
<PAGE>
practicable after the asset is acquired, but in any case
within 12 months after the Acquisition Date;
(d) the principal or corresponding amount secured under that
Permitted Security Interest will not be increased beyond
the amount outstanding at the Acquisition Date, and shall
be reduced in accordance with its terms. In the case of
a revolving facility, the previous sentence will not
prevent fluctuations within the overall limit of that
facility that existed at the Acquisition Date.
Permitted Security Interest over New Group Member
24.2 If a New Group Member has a Permitted Security Interest
over any of its assets or revenues, the Australian Parent
undertakes that:
(a) the maturity date of any financial obligation secured
under that Permitted Security Interest will not be
extended beyond the date of its maturity as at the
Acquisition Date;
(b) if the Permitted Security Interest secures any financial
obligation which does not have a fixed maturity as at the
Acquisition Date, the Permitted Security Interest will be
discharged and released as soon as practical after the
Acquisition Date, but in any case within 12 months after
the Acquisition Date;
(c) the principal or corresponding amount secured under the
Permitted Security Interest will not be increased beyond
the amount outstanding at the Acquisition Date, and will
be reduced in accordance with its terms. In the case of
a revolving facility, the previous sentence will not
prevent fluctuations within the overall limit that
existed at the Acquisition Date.
25. Facilities involving foreign currencies
25.1 All Facilities which involve foreign currencies are made
available subject to the terms and conditions of this clause 25.
A reference in this clause to a Facility which is made
available in a foreign currency includes a Facility which is
denominated in a foreign currency, but which is made available
in Australian Dollars.
Funding Risk and Non-availability
25.2 This clause applies if the Bank at any time determines that
the making or continuation of a Facility which is denominated
in a foreign currency is impractical or impossible, by reason
of:
(i) any change in national or international financial,
political or economic conditions, currency exchange
rates, currency availability or exchange controls;
or
(ii) the occurrence of an event or contingency which
materially and adversely affects the inter-bank
markets generally; or
<PAGE>
(iii)any change in applicable law or governmental
regulation or order (whether or not having the
force of the law).
In that case, the Bank will as soon as
practicable give written notice
to the Australian Parent.
During the period of 30 days
from the giving of notice, the
Bank shall negotiate with the
Australian Parent for a mutually
acceptable alternative basis to
make or continue the relevant
Facility (including conversion
back to Australian Dollars, or
to another mutually acceptable
currency).
If the parties fail to agree
upon an alternative basis
acceptable to both of them
within that period of 30 days
the obligation of the Bank to
provide the relevant Facility
shall be terminated. Clause 26
will then apply.
A determination under this
clause 25.2 shall be made in
good faith by the Bank and shall
be conclusive and binding on the
Group.
Currency Indemnity
25.3 This clause applies if a judgment or order is given by any
court or tribunal for the payment of any amounts owing to the
Bank under a Facility or for the payment of damages in respect
of any breach of the terms of a Facility, and if that judgment
or order is expressed in a currency ("Judgment Currency")
other than the foreign currency which is payable pursuant to
the
Facility in question ("Relevant Foreign Currency"). In that
case, the Group will indemnify the Bank against any deficiency
in terms of the Relevant Foreign Currency in the amounts
received by the Bank arising or resulting from any variation
between:
(a) the rate of exchange at which the Relevant Foreign
Currency is converted into the Judgment Currency for the
purposes of that judgment or order; and
(b) the rate of exchange at which the Bank is able to
purchase the Relevant Foreign Currency with the amount of
the Judgment Currency actually received at the time of
its receipt by the Bank.
This clause 25.3 is a separate and
independent obligation of the Group and shall
apply irrespective of any time or other
indulgence granted by the Bank.
Non-Management of Foreign Currency
25.4 The Bank does not manage, supervise or advise in respect of
the Group's foreign currency exposure. The Group must obtain
and rely upon its own professional advice entirely. No
officer of the Bank has any authority to make any
representation or give any advice to the Group as to any
matter relating to foreign currency.
<PAGE>
26. Renegotiation of Facilities
26.1 If clause 10 applies then the Bank will give notice to the
Australian Parent. Subject to clause 1.6, during the 60 days
following that notice, the Bank and the Australian Parent will
negotiate on a best endeavours basis with a view to
restructuring each affected Facility on mutually acceptable
terms.
If the Bank and the Australian Parent cannot
reach agreement within that 60 day period,
then:
(a) in the case of an Increased Costs Event, the Group must
either continue to pay the amount notified by the Bank
(or another amount agreed between them) or must prepay
the affected Facility in accordance with clause 26.2;
(b) in the case of an illegality, the Group must prepay the
affected Facility in accordance with clause 26.2.
26.2 Prepayment of the affected Facility under this clause 26
will take place as follows:
(a) in the case of an overdraft facility, the overdraft will
be repaid in full within 30 days after expiry of the 60
day negotiation period;
(b) in the case of Bills outstanding, the Group will deposit
with the Bank an amount equal to the face value thereof,
30 days after expiry of the 60 day negotiation period.
That amount will be held in an interest-bearing account
by the Bank, and applied towards meeting maturing Bills;
and
(c) in the case of standby letters of credit, bank guarantees
and documentary letters of credit outstanding, the Group
will either procure the return to the Bank of the
relevant instrument (which the Bank must then cancel) or
else deposit with the Bank an amount equal to the face
value thereof, 30 days after expiry of the 60 day
negotiation period, which amount will be held in an
interest-bearing account by the Bank,
and applied towards meeting amounts drawn under the
standby letters of credit or documentary letters of
credit.
26.3 Interest will be credited to the deposit account at the
Bank's usual rate from time to time for deposits of similar size
and term. Any moneys remaining in the deposit account after
the Moneys Outstanding have been repaid in full will be
promptly refunded by the Bank to the Australian Parent.
27. Specific order
The Bank may review (and, if considered
appropriate by the Bank, terminate) all
Facilities if at any time a Group Member
applies for or is granted an order in respect
of a specified class of companies under
section 313(6) of the Corporations Law by the
<PAGE>
Australian Securities Commission the
consequence of which is to provide that
Commission with a deed of indemnity. The Bank
is to be immediately notified if any Group
Member applies for or is granted such an
order.
28. Other securities and obligations of Group Member
The Bank's rights under the Guarantee and
Indemnity are additional to and do not merge
with or affect and are not affected by:
(a) any Security Interest now or subsequently held by the
Bank from a Group Member or any other person; or
(b) any other obligation of a Group Member to the Bank,
notwithstanding any rule of law or equity or
any statutory provision to the contrary.
29. Reinstatement of Bank's rights
If a claim is made that all or part of a
payment, obligation, settlement, transaction,
conveyance or transfer in connection with the
Guaranteed Money or other money payable under
this guarantee and indemnity is void or
voidable under law relating to Insolvency
Events or the protection of creditors or for
any other reason and the claim is upheld,
conceded or compromised, then:
(a) the Bank is entitled immediately as against each Group
Member to the rights in respect of the Guaranteed Money
or other money payable under the Guarantee and Indemnity
to which it would have been entitled if all or that part
of that payment, obligation, settlement, transaction,
conveyance or transfer had not taken place; and
(b) each Group Member agrees to do any act and sign any
document promptly on request from the Bank to restore to
the Bank any Security Interest or guarantee held by it
from the Group Member immediately prior to that payment,
obligation, settlement, transaction, conveyance or
transfer.
30. Costs, charges, expenses and indemnities
30.1 Each Group Member agrees to pay or reimburse the Bank on
demand for:
(a) the reasonable costs, charges and expenses of the Bank in
connection with the negotiation, preparation, execution,
stamping, registration and completion of any Document;
and
(b) the reasonable costs, charges and expenses of the Bank in
connection with any consent, approval, exercise or non-
exercise of rights, (including, without limitation, in
connection with
<PAGE>
the contemplated enforcement or preservation of any
rights under any Document) waiver, variation, release or
discharge in connection with any Document; and
(c) the costs charges and expenses of the Bank in connection
with the enforcement of any rights under any Document; and
(d) Taxes and fees (including, without limitation, registra-
tion fees) and fines and penalties in respect of fees,
which may be payable or determined to be payable in
connection with any Document or a payment or receipt or
any other transaction contemplated by any Document,
except to the extent such losses, costs,
charges, expenses, Taxes and fees arise as a
result of:
(e) the negligence, fraud or wilful misconduct of the Bank;
or
(f) action taken by the Bank in exercising its rights under
clause 34.
30.2 Each Group Member indemnifies the Bank against any
liability or loss arising from, and any reasonable costs,
charges and expenses incurred in connection with:
(a) the payment, omission to make payment or delay in making
payment of an amount referred to in clause 30.1; or
(b) an Event of Default; or
(c) requested financial accommodation not being made
available in accordance with the request for any reason
except default of the Bank; or
(d) subject to clause 8.2, a repayment being made for any
other reason than the maturity of a Facility in
accordance with this agreement;
(e) subject to clause 8.2, any payment required to be made
under any Document not being made on its due date; or
(f) the Bank acting in connection with a Document in good
faith on telex, facsimile or telephone instructions
purporting to originate from the offices of the Group
Member or to be given by an Authorised Officer of the
Group Member,
including, without limitation:
(g) Break Costs (or net of break profits made on the relevant
payment, which the Bank agrees to pay to the Group); and
(h) legal costs and expenses on a full indemnity basis, or on
a solicitor and own client basis whichever is the higher,
except to the extent such losses, costs,
charges and expenses arise as a result of:
<PAGE>
(i) the negligence, fraud or wilful misconduct of the Bank;
or
(j) action taken by the Bank in exercising its rights under
clause 34.
30.3 If any part of the Moneys Outstanding is financial
accommodation which the Group has raised on a fixed (non
variable) interest rate, or is denominated in a currency other
than Australian dollars, or relates to Treasury Transactions,
the attention of the Group is particularly drawn to clause
30.2 (d), as the Break Costs which may be payable under that
clause could be substantial.
30.4 The liability, loss, costs, charges or expenses (including
Break Costs) payable by the Group to the Bank under clause
30.2 may be determined by the Bank by reference to a pool of
funds, or averaging, or other matters distinct from a specific
borrowing by or a specific contract of the Bank made to fund
the particular facility.
30.5 The Bank will notify the Australian Parent of amounts
payable under this clause, giving reasonable particulars of
any calculations which the Bank makes under this clause.
31. Application of money
If an Event of Default has occurred, the Bank
may apply amounts paid by the Group towards
satisfaction of the Group's obligations under
the Documents in the manner the Bank sees fit,
unless the Documents expressly provide
otherwise.
32. Power of attorney
32.1 Each Group Member appoints each Authorised Officer of the
Australian Parent severally as its attorney ("Attorney") to:
(a) execute and deliver to the Bank each document required to
be executed and delivered by the Group Member under this
agreement, (including each Joinder Certificate which may
be executed under clause 21, and each Deed of Release
referred to in clause 22); and
(b) do all such other acts and execute all such documents as
may be necessary or convenient to exercise all the rights
and perform all the obligations of the Group Member under
this agreement.
32.2 The Bank may rely upon a declaration by the Attorney that
he or she has no notice of revocation of this power of
attorney as conclusive evidence of that fact.
32.3 Each Group Member undertakes to ratify and confirm any
document executed by the Attorney and any action taken by the
Attorney under this clause.
<PAGE>
33. Notices
33.1 A notice, approval, consent or other communication in
connection with a Document:
(a) may be given by an Authorised Officer of the relevant
party; and
(b) must be in writing; and
(c) must be left at the address of the addressee or sent by
prepaid ordinary post (airmail if posted to or from a
place outside Australia) to the address of the addressee
or sent by facsimile to the facsimile number of the
addressee which is specified in item 7 of schedule 1 or
if the addressee notifies another address or facsimile
number then to that address or facsimile number.
33.2 Unless a later time is specified in it a notice, approval,
consent or other communication takes effect from the time it
is received.
33.3 A letter or facsimile is taken to be received:
(a) in the case of a posted letter, on the third (seventh, if
posted to or from a place outside Australia) day after
posting; and
(b) in the case of a facsimile, on production of a transmis-
sion report by the machine from which the facsimile was
sent which indicates that the facsimile was sent in its
entirety to the facsimile number of the recipient
notified for the purpose of this clause and the recipient
does not notify an error in transmission, but if the
facsimile is received on a day which is not a Business
Day, or after 4.00pm on a Business Day, it shall be
deemed to have been received on the next Business Day.
34. Assignment
34.1 The Bank may not, without the prior written consent of the
Australian Parent, assign or otherwise dispose of or deal with
its rights under this agreement. The Australian Parent must
not withhold that consent unless the proposed transaction
would cause or result in a breach of applicable laws relating
to the gaming licensing of the US Parent or the Australian
Parent.
34.2 No consent is required if the proposed assignment, disposal
or other dealing is in favour of a wholly owned Subsidiary of
the Bank.
34.3 The Group shall not be liable to pay any cost (including,
without limitation, under clause 10 or clause 30) arising out
of any such assignment, disposal or other dealing which the
Group would not have been liable to pay if the assignment,
disposal or other dealing had not taken place.
<PAGE>
35. Miscellaneous
Certificate
35.1 A certificate signed by the Bank or its solicitors about a
matter (including, without limitation, the rate of interest
payable by the Group) or about a sum payable to the Bank in
connection with a Document is prima facie evidence of the
matter or sum stated in the certificate, in the absence of
manifest
error.
Exercise of rights
35.2 The Bank may exercise a right, power or remedy at its
discretion, and separately or concurrently with another right,
power or remedy. A single or partial exercise of a right,
power or remedy by the Bank does not prevent a further
exercise of that or an exercise of any other right, power or
remedy.
Failure by the Bank to exercise or delay in exercising a
right, power or remedy does not prevent its exercise. The
Bank is not liable for any loss caused by the exercise,
attempted exercise, failure to exercise or delay in exercising
a right, power or remedy unless caused by the Bank's
negligence.
Waiver and variation
35.3 A provision of or a right created under this agreement may
not be waived or varied except in writing signed by the party
or parties to be bound.
Supervening legislation
35.4 Any present or future legislation which operates to vary
the obligations of the Group in connection with this agreement
with the result that the Bank's rights, powers or remedies are
adversely affected (including without limitation, by way of
delay or postponement) is excluded except to the extent that
its exclusion is prohibited or rendered ineffective by law.
Approvals and consent
35.5 Unless this agreement expressly provides otherwise, the
Bank may give conditionally or unconditionally or withhold its
approval or consent in its absolute discretion.
Remedies cumulative
35.6 The rights, powers and remedies provided in this agreement
are cumulative with and not exclusive of the rights, powers or
remedies provided by law independently of this agreement.
Set-off
35.7 At its sole discretion the Bank may at any time after the
occurrence of an Event of Default apply any credit balance in
any currency in any account of the Group with the Bank towards
satisfaction of any amount then payable by the Group to the
Bank under the Documents. The Group authorises the Bank in
the name of the Group or the Bank to do anything (including,
without limitation, to execute any document) that is required
for that purpose.
Indemnities
35.8 Each indemnity in this agreement is a continuing
obligation, separate and independent from the other
obligations
<PAGE>
of the Group and survives termination of this agreement. It
is not necessary for the Bank to incur expense or make payment
before enforcing a right of indemnity conferred by this
agreement.
Further assurances
35.9 At the Bank's request the Group must, at its own expense:
(a) execute and cause its successors to execute documents and
do everything else necessary or appropriate to bind the
Company and its successors under the Documents; and
(b) use its best endeavours to cause relevant third parties
to do likewise to bind every person intended to be bound
under the Documents.
Confidentiality
35.10All information provided to the Bank by the Group or the US
Parent under the Documents is confidential to the Bank, its
employees, legal advisers, auditors and other consultants and
may not be disclosed to any person except:
(a) with the consent of the Australian Parent (which consent
is not to be unreasonably withheld); or
(b) if allowed or required by law or required by any stock
exchange; or
(c) in connection with legal proceedings relating to the
Documents; or
(d) if the information is generally and publicly available;
or
(e) to a Subsidiary of the Bank, but only if the Subsidiary
agrees to use the information only for the purpose for
which it is disclosed and otherwise to be bound by the
terms of this clause 35.10; or
(f) to a potential assignee, participant or sub-participant
of the Bank's interests under a Document or to any other
person who is considering entering into contractual
relations with the Bank in connection with a Document,
but only if the recipient agrees in writing to use the
information only for the purpose for which it is
disclosed and otherwise to be bound by the terms of this
clause 35.10.
36. Governing law, jurisdiction and service of process
36.1 This agreement is governed by the law in force in New South
Wales.
36.2 Each party irrevocably and unconditionally submits to the non-
exclusive jurisdiction of the courts of New South Wales and
courts of appeal from them. Each party waives any right it
has to object to an action being brought in those courts
including,
<PAGE>
without limitation, by claiming that the action has been
brought in an inconvenient forum or that those courts do not
have jurisdiction.
36.3 Without preventing any other mode of service, any document
in an action (including, without limitation, any writ of
summons or other originating process or any third or other
party notice) may be served on any party by being delivered to
or left for that party at its address for service of notices
under clause 33.
37. Counterparts
This agreement may consist of a number of
counterparts. The counterparts taken
together constitute one and the same
instrument.
EXECUTED as an agreement.
<PAGE>
Execution page
SIGNED by )*
as attorney for IGT )
(AUSTRALIA) PTY LIMITED )
under power of attorney )
dated )
) in the presence of:
)
............................ )
............................ ) ...............................
Signature of witness ) ...............................
)
............................ By executing this agreement the
............................ attorney states that the
............................ attorney has received no notice
................... of revocation of the power of
Name of witness (block attorney
letters)
............................
Address of witness
............................
Occupation of witness
SIGNED by )*
as attorney for IGT )
(MANUFACTURING) PTY LIMITED ) under power of attorney
dated )
in the presence of: )
)
............................ ) ...............................
............................ )
................... ) ...............................
Signature of witness ) ...............................
) ...............................
............................ By executing this agreement the
............................ attorney states that the
................... attorney has received no notice
Name of witness (block of revocation of the power of
letters) attorney
.............................
Address of witness
............................
Occupation of witness
<PAGE>
SIGNED by )*
as attorney for MEGABUCKS )
(AUSTRALIA) PTY LIMITED )
under power of attorney )
dated )
in the presence of: )
)
)
............................ )
Signature of witness ) ...............................
) ...............................
............................ ) .......................
............................ By executing this agreement the
............................ attorney states that the
................... attorney has received no notice
Name of witness (block of revocation of the power of
letters) attorney
............................
Address of witness
............................
............................
Occupation of witness
SIGNED by )*
as attorney for IGT (NEW )
ZEALAND) LIMITED is under )
power of attorney dated )
) in the presence of:
)
............................ )
Signature of witness ) ...............................
) ...............................
............................ ) .......................
............................ By executing this agreement the
............................ attorney states that the
................... attorney has received no notice
Name of witness (block of revocation of the power of
letters) attorney
............................
Address of witness
............................
Occupation of witness
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SIGNED by )
)
as duly authorised officer for )
NATIONAL AUSTRALIA BANK )
LIMITED in the presence of: )
.............................. .............. Signature of
witness
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Name of witness (block
letters)
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FACILITY AGREEMENT FOR
IGT (AUSTRALIA) GROUP
LIST OF SCHEDULES
Schedule 1 Particulars
Schedule 2 Conditions Precedent
Schedule 3 Undertakings
Schedule 4 Joinder Certificate
Schedule 5 Deed of Release
Schedule 6 Certificate of Compliance by
Security Provider
Schedule 7 Request for Facility/ies to be
Made Available Members of the Group
Schedule 8 Facility Schedule for
Overdraft Sub-Facility
Schedule 9 Facility Schedule for Bills
Sub-Facility
Schedule 10 Facility Schedule for Standby
Letter of Credit Guarantees by
Bank Sub-Facility
Schedule 11 Facility Schedule for
Acquisition Facility
Schedule 12 Facility Schedule for
Transactional Facility
To: National Australia Bank Limited
C/- Corporate Banking and Finance NSW & ACT
Level 25
National Australia Bank House
255 George Street
SYDNEY NSW 2000
Attention: Mr Craig Trevor, Relationship Manager
Dear Sirs
Facilities to IGT (Australia) Pty Limited and subsidiaries
Subject to the following, this is a guarantee of the
obligations of each company which is a "Group Member" under:
(a) each Facility, as defined in a Facility Agreement
between IGT (Australia) Pty Limited and certain of its
subsidiaries, and National Australia Bank Limited (ACN
004 044 937) ("Bank") dated on or about the date of
this Guarantee ("Facility Agreement"); and
(b) all Treasury Transactions (as defined in the Facility
Agreement) entered into by any Group Member with the
Bank under any ISDA Master Agreement executed in
connection with accommodation provided under the
Facility Agreement ("Hedging Arrangements"),
up to an aggregate maximum limit of A$205,000,000. We are
aware of the terms of the Facility Agreement and the proposed
Hedging Arrangements and understand that this Guarantee is a
condition to the Bank making financial accommodation available
to the Group Members.
1. Guarantee
International Game Technology ("Guarantor")
unconditionally and irrevocably guarantees payment by
each Group Member of all moneys owing, jointly and
severally, by each Group Member to the Bank, whether or
not now due and payable, or actual or contingent, in
connection with the Facilities and the Hedging
Arrangements (the "Guaranteed Moneys") up to an aggregate
maximum limit of A$205,000,000. This Guarantee :
(a) is in respect of all Guaranteed Moneys payable under the
Hedging Arrangements; and
(b) in respect of the Guaranteed Moneys payable under the
Facility Agreement, is limited to:
<PAGE>
(i) in respect of principal, the aggregate of all amounts
described in the definition of "Limit" in the Facility
Agreement on the date it is signed; and
(ii) in respect of amounts in the nature of fees, interest,
Taxes (as defined in the Facility Agreement), costs, expenses
and other amounts payable, such amounts calculated in
accordance with the relevant terms of the Facility Agreement
as those terms stand on the date it is signed; and
(iii)in any case, such moneys owing or payable by subsidiaries
which are "Group Members" under the Facility Agreement on the
date the Facility Agreement is signed.
The Guarantor will make payment under this Guarantee upon
demand. A demand may be made at any time and from time
to time after a Group Member has failed to pay the
Guaranteed Moneys when due, even if demand has not been
made on the Group Member.
2. Indemnity
If the obligation of a Group Member to pay the Guaranteed
Moneys to the Bank is unenforceable for any reason, the
Guarantor as a separate undertaking unconditionally and
irrevocably indemnifies the Bank against any loss the
Bank suffers as a result. However, the maximum amount
recoverable under the indemnity in this paragraph 2 is
limited to the aggregate amount of Guaranteed Moneys
which would have been recoverable under paragraph 1 if
the obligation of the Group Member to pay the Guaranteed
Moneys to the Bank was enforceable. It is not necessary
for the Bank to incur any expense or make any payment
before enforcing this right of indemnity.
3. Extent and release of guarantee and indemnity
This Guarantee is a continuing security until, and
(subject to paragraph 7 of this Guarantee) is
automatically released once:
(a) there are no further Guaranteed Moneys outstanding; and
(b) there are no outstanding Hedging Arrangements; and
(c) the Bank is under no further obligation to provide
accommodation in connection with the Facility Agreement or the
Hedging Arrangements.
This Guarantee is not released merely because there are
no Guaranteed Moneys owing at a particular time, or
because a Group Member pays the Guaranteed Moneys owing
at a particular time.
4. Enforcement of rights
The Guarantor waives any right it has of first requiring
the Bank to make demand upon or commence proceedings or
enforce any other right against a Group Member or any
other person before claiming under this Guarantee.
<PAGE>
5. Guarantee not affected
The liability of the Guarantor and the right of the Bank
under this Guarantee are not affected by anything which
might otherwise affect them at law or in equity.
6. Suspension of Guarantor's rights
Until this Guarantee is released in accordance with
paragraph 3, the Guarantor will not, without the consent
of the Bank:
(a) raise a defence, set-off or counterclaim available to it
or a Group Member against the Bank in reduction of its
liability under this Guarantee;
(b) prove in competition with the Bank if a liquidator,
provisional liquidator, receiver, official manager is
appointed to a Group Member; or
(c) claim to be entitled by way of contribution, indemnity,
subrogation, marshalling or otherwise to the benefit of any
security or guarantee held by the Bank in connection with the
Guaranteed Moneys.
7. Reinstatement of Guarantee
If a claim is made that a payment to the Bank by a Group
Member or another person is void or voidable (including,
but not limited to, a claim under laws relating to
liquidation, insolvency or protection of creditors), then
the Bank is entitled immediately as against the Guarantor
to the rights to which it would have been entitled under
this Guarantee if the payment had not occurred. This
paragraph continues to apply even though this Guarantee
has been released in accordance with paragraph 3.
8. Notification to the Bank
The Guarantor must, promptly after becoming aware,
deliver to the Bank by facsimile transmission or other
instantaneous communication in writing all information
publicly released by Moody's Investor Services, Inc and
Standard & Poor's ratings agencies in the United States
of America where that information discloses, or will in
accordance with generally accepted market practice in the
United States of America have, a negative effect upon the
credit rating or credit outlook of the Guarantor.
9. Governing law
This Guarantee is governed by the law in force in New
South Wales. The Guarantor submits to the jurisdiction
of the courts of New South Wales and the courts of appeal
from them.
<PAGE>
DATED: [ ] February 1998
...............................
Signed by [print name] who is a [print title] of
International Game Technology and is duly
authorized to sign this Guarantee on behalf of that company
