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EXHIBIT 10.7
COLLINS FOODS GROUP PTY LTD ACN 009 937 900
COLLINS FOODS INTERNATIONAL PTY LTD ARBN 009 980 250
COLLINS INTERNATIONAL INC
COLLINS RESTAURANTS QUEENSLAND PTY LTD ACN 009 988 381
SIZZLER NEW ZEALAND LIMITED
SIZZLER SOUTH PACIFIC PTY LTD ARBN 010 713 952
SIZZLER SOUTH-EAST ASIA INC
SIZZLER RESTAURANTS GROUP PTY LTD ACN 010 102 388
SIZZLER RESTAURANT SERVICES, INC
SIZZLER ASIA HOLDINGS INC.
COLLINS RESTAURANTS MANAGEMENT PTY LTD ACN 093 912 979
(EACH A 'DEBTOR')
SIZZLER INTERNATIONAL, INC.
SIZZLER INTERNATIONAL MARKS INC.
RESTAURANT CONCEPTS OF AUSTRALIA, PTY LTD
SIZZLER FRANCHISE DEVELOPMENT, LTD
FURNACE CONCEPTS INTERNATIONAL, INC
FURNACE CONCEPTS AUSTRALIA CORP. ARBN 070 065 468
RESTAURANT CONCEPTS INTERNATIONAL INC,
SIZZLER AUSTRALIA PTY LTD ACN 010 060 876
COLLINS PROPERTY DEVELOPMENT PTY LTD ACN 010 539 616
COLLINS FINANCE AND MANAGEMENT PTY LTD ACN 009 996 721
COLLINS FOODS AUSTRALIA PTY LTD ACN 009 914 103
(EACH A 'JUNIOR CREDITOR')
WESTPAC BANKING CORPORATION ARBN 007 457 141
('SENIOR CREDITOR')
SUBORDINATION DEED
MINTER ELLISON
Lawyers
Waterfront Place
1 Eagle Street
BRISBANE QLD 4000
DX 102 BRISBANE
Telephone (07) 3226 6333
Facsimile (07) 3229 1066
GB 1090692
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TABLE OF CONTENTS
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1. INTERPRETATION......................................................................2
2. CONSIDERATION.......................................................................4
3. SUBORDINATION.......................................................................5
4. REPRESENTATIONS AND WARRANTIES......................................................7
5. PERMITTED PAYMENTS..................................................................7
6. RESTRICTIONS ON INDEBTEDNESS........................................................8
7. UNDERTAKINGS........................................................................8
8. PRESERVATION OF SENIOR CREDITOR'S RIGHTS...........................................10
9. NO COMPETITION.....................................................................10
10. OTHER SECURITY.....................................................................10
11. COSTS AND EXPENSES.................................................................10
12. SET OFF............................................................................11
13. ASSIGNMENT.........................................................................11
14. POWER OF ATTORNEY..................................................................11
15. CERTIFICATES.......................................................................12
16. NOTICES............................................................................12
17. SEVERABILITY.......................................................................13
18. GOVERNING LAW AND JURISDICTION.....................................................13
19. AGENT FOR SERVICE OF PROCESS.......................................................13
20. ATTORNEYS..........................................................................14
21. NOVATION AND TERMINATION OF EARLIER DEED...........................................14
</TABLE>
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SUBORDINATION DEED
DEED dated August 21, 2000
BETWEEN: COLLINS FOODS GROUP PTY LTD ACN 009 937 900
COLLINS FOODS INTERNATIONAL PTY LTD ARBN 009 980 250
COLLINS INTERNATIONAL INC, A COMPANY INCORPORATED IN DELAWARE,
UNITED STATES OF AMERICA
COLLINS RESTAURANTS QUEENSLAND PTY LTD ACN 009 988 381
SIZZLER NEW ZEALAND LIMITED, A COMPANY INCORPORATED IN NEVADA,
UNITED STATES OF AMERICA
SIZZLER SOUTH PACIFIC PTY LTD ARBN 010 713 952
SIZZLER SOUTH-EAST ASIA INC, A COMPANY INCORPORATED IN NEVADA,
UNITED STATES OF AMERICA
SIZZLER RESTAURANTS GROUP PTY LTD ACN 010 102 388
SIZZLER RESTAURANT SERVICES, INC, A COMPANY INCORPORATED IN
NEVADA, UNITED STATES OF AMERICA
SIZZLER ASIA HOLDINGS, INC, A COMPANY INCORPORATED IN
DELAWARE, UNITED STATES OF AMERICA
COLLINS RESTAURANTS MANAGEMENT PTY LTD ACN 093 912 979
each of or c/- 16 Edmondstone Street, Newmarket, Brisbane,
Queensland, Australia
(EACH A 'DEBTOR')
AND SIZZLER INTERNATIONAL, INC., A COMPANY INCORPORATED IN
DELAWARE, UNITED STATES OF AMERICA
SIZZLER INTERNATIONAL MARKS INC., A COMPANY INCORPORATED IN
DELAWARE, UNITED STATES OF AMERICA
RESTAURANT CONCEPTS OF AUSTRALIA, PTY LTD
SIZZLER FRANCHISE DEVELOPMENT, LTD, A COMPANY INCORPORATED IN
BERMUDA
FURNACE CONCEPTS INTERNATIONAL, INC, A COMPANY INCORPORATED IN
NEVADA, UNITED STATES OF AMERICA
FURNACE CONCEPTS AUSTRALIA CORP. ARBN 070 065 468
RESTAURANT CONCEPTS INTERNATIONAL INC, A COMPANY INCORPORATED
IN NEVADA, UNITED STATES OF AMERICA
SIZZLER AUSTRALIA PTY LTD ACN 010 060 876
COLLINS PROPERTY DEVELOPMENT PTY LTD ACN 010 539 616
COLLINS FINANCE AND MANAGEMENT PTY LTD ACN 009 996 721
COLLINS FOODS AUSTRALIA PTY LTD ACN 009 914 103
each of c/- 16 Edmondstone Street, Newmarket, Brisbane,
Queensland, Australia
(EACH A 'JUNIOR CREDITOR')
AND WESTPAC BANKING CORPORATION ARBN 007 457 141, of 260 Queen
Street, Brisbane, Queensland
('SENIOR CREDITOR')
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RECITAL
The Senior Creditor, each Junior Creditor and each Debtor have agreed that the
Subordinated Debt will be subordinated to the Senior Debt on the terms and to
the extent provided in this document.
AGREEMENT
1. INTERPRETATION
1.1 DEFINITIONS
In this document:
'ACCESSION DEED' means an Accession Deed substantially in the form of
annexure 'A'.
'AUTHORISED OFFICER' means, in relation to a body corporate, a person
for the time being holding or acting in the office of director, chief
executive, deputy chief executive or secretary of that body corporate
or a person the title of whose office at the body corporate includes
the word 'Manager' or the word 'Director' or the like.
'BUSINESS DAY' means a day on which the Senior Creditor is generally
open for business except a Saturday, Sunday or public holiday.
'CONTROLLER' means an administrator, receiver, receiver and manager,
trustee, provisional liquidator, liquidator, inspector, statutory
manager or any other person (however described) holding or appointed to
an analogous office or acting or purporting to act in an analogous
capacity whether pursuant to any statute, the order or authority of any
Public Authority, a Security Interest or otherwise.
'EVENT OF DEFAULT' means any event of default or other event in
relation to or under any document or arrangement evidencing the
Subordinated Debt or Senior Debt which entitles a Junior Creditor or
the Senior Creditor to accelerate the due date for payment or discharge
of any liability.
'GROUP' has the same meaning as in the Negative Pledge.
'GUARANTEE' means a guarantee, indemnity, letter of credit, letter of
comfort or any other obligation whatever called and of whatever nature
by which a person is responsible for an obligation or debt of another.
'JUNIOR CREDITOR' includes the parties specified as such on the first
page of this documents and any person who becomes a Junior Creditor
under an Accession Deed;
'NEGATIVE PLEDGE' means the Unlimited Cross Guarantee and Indemnity and
Negative Pledge with Financial Ratio Covenants dated on or around the
date of this document between the Senior Creditor, Collins Foods Group
Pty Ltd and its Subsidiaries and others.
'POTENTIAL EVENT OF DEFAULT' means any event, thing or circumstance
which with the giving of notice or passage of time or both would become
an Event of Default.
'PUBLIC AUTHORITY' means the Crown, any government or minister or any
governmental, semi-governmental or judicial entity, department,
instrumentality or authority.
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'RESTRUCTURE' means the restructure of the Group as described to
Westpac before the date of this Deed. For the purpose of this Deed, the
Restructure is complete when:
(a) Collins Foods Group Pty Ltd ACN 009 937 900 holds all of the
issued shares in:
- Sizzler Asia Holdings, Inc;
- Collins Restaurants Queensland Pty Ltd;
- Collins Restaurants Management Pty Ltd; and
- Sizzler Restaurants Group Pty Ltd; and
(b) Sizzler Asia Holdings, Inc. holds all of the issued shares in:
- Sizzler Restaurant Services, Inc;
- Sizzler South East Asia, Inc; and
- Sizzler New Zealand, Limited; and
not less than 50% of the issued shares in Sizzler Steak
Seafood Salad (S) Pte Ltd; and
(c) all of the issued shares in Collins Food Group Pty Ltd ACN 009
937 900 are held by Restaurants Concepts International, Inc.
'SECURITY INTEREST' means any mortgage, pledge, lien, charge or other
preferential right, trust arrangement, agreement or arrangement of any
kind given or created as or by way of security.
'SENIOR DEBT' means all money, debts and liabilities now or in the
future owing or remaining unpaid by any Debtor to the Senior Creditor
(whether actually or contingently and whether alone or with any other
person) on any account or in any way whatever.
'SIZZLER INTERNATIONAL' means Sizzler International Inc. a company
incorporated in Delaware, United States of America.
'SUBORDINATED DEBT' means all money, debts and liabilities now or in
the future owing or remaining unpaid by any Debtor to any Junior
Creditor (whether actually or contingently and whether alone or with
any other person) on any account or in any way whatever.
'SUBSIDIARY' has the same meaning it has in the Negative Pledge.
'SURETY', in respect of a Debtor, means a person other than the Debtor
who at any time has given a Guarantee, alone or jointly or jointly and
severally in respect of the Debtor's Senior Debt or Subordinated Debt.
'WINDING UP' of or in relation to a person includes:
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(a) the dissolution, receivership, administration, liquidation,
provisional liquidation or bankruptcy of that person and any
form of administration of that person under any law relating
to insolvency or bankruptcy; and
(b) any equivalent or analogous procedure (however described) to
which that person may be subject under the law of any
jurisdiction.
1.2 CONSTRUCTION
In this document, headings are for reference only and do not affect its
meaning and unless the contrary intention appears:
(a) the singular includes the plural and vice versa and words
importing a gender include other genders;
(b) other grammatical forms of defined words or expressions have
corresponding meanings;
(c) where there are two or more persons bound or to be bound an
agreement or obligation binds those persons severally and any
two or more of them jointly;
(d) a reference to a party to this document includes that party's
successors and permitted assigns;
(e) a reference to a document or agreement, including this
document, includes a reference to that document or agreement
as novated, altered or replaced from time to time;
(f) a reference to writing includes any mode of representing or
reproducing words in a visible form;
(g) a reference to any thing includes the whole or any part of
that thing and a reference to a group of things or persons
includes each thing or person in that group;
(h) a reference to 'dollar' or '$' is a reference to Australian
currency;
(i) a reference to any legislation or statutory instrument or
regulation is to be construed in accordance with the Acts
Interpretation Act 1901 (Cth) or the equivalent State
legislation, as applicable, as if this document were an Act;
and
(j) words and expressions importing natural persons include
partnerships, bodies corporate, associations and Public
Authorities.
2. CONSIDERATION
Each Junior Creditor and each Debtor acknowledge entering into and
incurring obligations and giving rights under this document in
consideration of the Senior Creditor continuing to provide financial
accommodation to or at the request of any Debtor.
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3. SUBORDINATION
3.1 SUBORDINATION OF DEBT
Until the Senior Creditor has received payment of the Senior Debt in
full:
(a) no Debtor will:
(i) except as permitted under clause 5, pay or allow
payment of the Subordinated Debt owed by it;
(ii) permit or assist a Junior Creditor to recover the
Subordinated Debt owed by it; or
(iii) set off the Subordinated Debt owed by it against any
indebtedness to the Junior Creditor to which that
Subordinated Debt is owed; and
(b) no Junior Creditor will:
(i) except as permitted under clause 5, accept payment of
the Subordinated Debt owed to it;
(ii) demand payment of, sue for or take other action to
cause payment or acceleration of payment of the
Subordinated Debt owed to it;
(iii) take or be a party to any proceeding or action for
the purpose of the appointment of a Controller in
respect of or the Winding Up of any Debtor (other
than a Debtor being wound up in accordance with
clause 3.6); or
(iv) exercise any right of set off or combination of
accounts in respect of any Debtor.
3.2 WINDING UP PROCEEDINGS
In any proceedings for the Winding Up of a Debtor (other than a Debtor
being wound up in accordance with clause 3.6):
(a) payment of the Debtor's Subordinated Debt is conditional on
the Senior Creditor having received payment of the Senior Debt
in full;
(b) until the Senior Creditor has received payment of the Senior
Debt in full no Junior Creditor will, except on request from
the Senior Creditor, prove for any of its Subordinated Debt
and will on proving immediately send a copy of its notice of
proof to the Senior Creditor; and
(c) until the Senior Creditor has received payment of the Senior
Debt in full, each Junior Creditor will on request from the
Senior Creditor prove for the whole of its Subordinated Debt
and will on proving send a copy of its notice of proof to the
Senior Creditor.
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3.3 PROCEEDS
If, before the Senior Creditor has received payment of the Senior Debt
in full, a Junior Creditor receives any payment or recovers any amount
in respect of the Subordinated Debt owed to it which is not permitted
under clause 5 ('RECEIPT'):
(a) the Junior Creditor will pay an amount equal to the Receipt to
the Senior Creditor to be applied in reduction of the Senior
Debt; and
(b) to the extent that this does not create any Security Interest
which would:
(i) breach any law or directive of any Public Authority;
or
(ii) require registration in order not to be void or
voidable in full or against certain parties,
the Receipt will be held for and on behalf of the Senior Creditor by
the Junior Creditor and will be paid by the Junior Creditor in
accordance with clause 3.3(a).
3.4 NON-RETAINABLE RECEIPT
If any payment received by the Senior Creditor in respect of the Senior
Debt is subsequently avoided or repaid or conceded to be or compromised
as being void, voidable or repayable under any law relating to
insolvency or the protection of creditors or to any other matter or
event whatever then despite any release, discharge, acknowledgment or
notice of revocation of this document having been given on the basis of
any such payment, the payment will be deemed not to have been made and
the Senior Creditor's right to receive the full amount of the Senior
Debt under this document prior to any payment by any Debtor of the
whole or any part of the Subordinated Debt owed by it (other than as
permitted under clause 5) will not be prejudiced or affected.
3.5 CONSENT TO CREATION OF SUBORDINATED DEBT
The Senior Creditor consents to the creation of Subordinated Debt of
$1,500,000.00 between Collins Finance and Management Pty Ltd ACN 009
996 721 and Collins Foods Group Pty Ltd ACN 009 937 900.
3.6 WINDING UP FOR THE PURPOSE OF RESTRUCTURE
If:
(a) a Junior Creditor or Debtor is being Wound Up as part of the
Restructure (whether or not the Restructure is complete for
the purpose of this document); and
(b) the Subordinated Debt owing by or to the Junior Creditor or
Debtor as the case may be has been repaid without breaching
any provision of this document before any proceedings for the
Winding Up commenced; and
(c) no Event of Default or Potential Event of Default has
occurred,
Westpac will consent to the Winding Up of the Junior Creditor or Debtor
as the case may be, and release it from any further obligation under
this document.
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4. REPRESENTATIONS AND WARRANTIES
4.1 REPRESENTATIONS AND WARRANTIES OF JUNIOR CREDITORS AND DEBTORS
Each Junior Creditor and Debtor represents and warrants to the Senior
Creditor that:
(a) it is a corporation and is properly incorporated and validly
existing;
(b) it is empowered to enter into this document and to carry out
any transaction or obligation contemplated by this document
and all necessary actions have been taken to render this
document valid and binding on it and to enable it to carry out
any transaction or obligation contemplated by this document;
(c) the execution and performance of this document by it has not
and will not:
(i) result in the contravention of a law or a directive
of any Public Authority;
(ii) result in the creation of a Security Interest on or
the crystallisation of a charge over any asset of it;
or
(iii) conflict with the operation or terms of any document
or arrangement which binds it;
(d) after the Restructure is complete it will not owe or have the
benefit of any money, debt or liability now or in the future
owing or remaining unpaid by or to a company which is at the
date of this document a member of the Sizzler International
Inc. group of companies unless that company is described as a
Debtor or Junior Creditor (as the case may be) in this
document
4.2 RELIANCE BY SENIOR CREDITOR
Each Junior Creditor and Debtor acknowledges that the Senior Creditor
has entered into this document in reliance upon the representations and
warranties given in this clause 4.
5. PERMITTED PAYMENTS
5.1 GENERAL PROVISIONS ABOUT PAYMENT
So long as:
(a) no Senior Debt is due and unpaid;
(b) no Event of Default or Potential Event of Default has
occurred; and
(c) neither a Debtor nor a Junior Creditor is in breach of the
provisions of this document,
each Debtor may pay, and each Junior Creditor may receive and retain
payment of:
(d) such payments in respect of the Subordinated Debt owed by it
or to it (as the case may be) as are permitted under the
Negative Pledge or this document; and
(e) such payments as the Senior Creditor may allow by notice to
the relevant Debtor and relevant Junior Creditor.
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5.2 SPECIFIC PROVISIONS ABOUT PAYMENT
Subject to clause 5.1, the following are permitted payments which may
be made after the date of this Deed:
(a) a maximum amount of A$58,000,000.00 to Sizzler International,
when the Restructure is complete; and
(b) an annual payment not exceeding A$3,900,000.00 in any twelve
month period commencing 1 May and ending 30 April to Sizzler
International for management fees and interest payments on the
Subordinated Debt; and
(c) such other payments as the Senior Creditor may allow from
moneys held by Collins Restaurants Management Pty Ltd ACN 093
912 979 in a term deposit account with Westpac to pay accrued
interest on Subordinated Debt and management fees to Sizzler
International.
6. RESTRICTIONS ON INDEBTEDNESS
(a) Each Debtor undertakes that it will not become in any way
indebted to any Subsidiary of Sizzler International (other
than a Junior Creditor or a Debtor); and
(b) Sizzler International undertakes that it will not permit any
Debtor to become so indebted to any Subsidiary of Sizzler
International (other than a Junior Creditor),
unless each party to this document and the relevant Subsidiary first
executes and delivers to the Senior Creditor an Accession Deed under
which the relevant Subsidiary agrees to be bound by this Deed as a
Junior Creditor. Each Debtor and Junior Creditor irrevocably authorises
each Authorised Officer of the Senior Creditor to execute any Accession
Deed on its behalf. This authority is given as security for the
obligations of the party giving it to the Senior Creditor.
7. UNDERTAKINGS
7.1 DEBTOR'S UNDERTAKINGS
Each Debtor undertakes that:
(a) it will not novate, vary, replace or rescind any agreement or
instrument under which the Debtor's obligations in respect of
the Subordinated Debt owed by it arise without the written
consent of the Senior Creditor (such consent not to be
unreasonably withheld);
(b) it will not permit any Guarantee to be given in respect of the
Subordinated Debt owed by it;
(c) it will not grant or permit to be granted a Security Interest
in respect of the Subordinated Debt owed by it;
(d) it will notify the Senior Creditor immediately if it receives
a demand for payment of any part of the Subordinated Debt owed
by it; and
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(e) it will promptly provide the Senior Creditor with copies of
all documents evidencing the Subordinated Debt owed by it and
any amendments, waivers or variations to or in relation to
such documents.
7.2 JUNIOR CREDITOR'S UNDERTAKINGS
Each Junior Creditor undertakes that:
(a) it will not novate, vary, replace or rescind any agreement or
instrument under which a Debtor's obligations in respect of
the Subordinated Debt owed to it arise without the written
consent of the Senior Creditor (such consent not to be
unreasonably withheld);
(b) it will not assign the Subordinated Debt owed to it or any
interest in it without the prior written consent of the Senior
Creditor;
(c) it will not accept the benefit of a Guarantee in respect of
the Subordinated Debt owed to it;
(d) it will not take or permit to exist a Security Interest in
respect of the Subordinated Debt owed to it;
(e) it will not waive payment of or release any Debtor or any of
the Debtor's Sureties from an obligation to pay the
Subordinated Debt owed to it or cause or permit its right to
be paid the Subordinated Debt owed to it to be prejudiced;
(f) it will exercise any voting power it has as shareholder of any
Debtor to ensure that the Debtor does not breach its
obligations under this document;
(g) it will use its best efforts to ensure that no Debtor breaches
its obligations under this document;
(h) it will notify the Senior Creditor of any default in any
agreement or instrument under which a Debtor's obligations in
respect of the Subordinated Debt owed to it arises;
(i) it will promptly provide the Senior Creditor with copies of
all documents evidencing the Subordinated Debt owed to it and
any amendments, waivers or variations to or in relation to
such documents; and
(j) if an Event of Default or Potential Event of Default occurs
and the Senior Creditor waives its right to require payment of
the Senior Debt, it must also waive any rights which it has
arising from the occurrence of that Event of Default or
Potential Event of Default or the waiver by the Senior
Creditor of its rights, to require payment of the Subordinated
Debt owed to it.
7.3 SIZZLER INTERNATIONAL'S UNDERTAKINGS
Sizzler International undertakes that:
(a) it will exercise any voting power it has as shareholder of any
other Junior Creditor to ensure that the Junior Creditor does
not breach its obligations under this document;
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(b) it will use its best efforts to ensure that no other Junior
Creditor breaches its obligations under this document.
8. PRESERVATION OF SENIOR CREDITOR'S RIGHTS
8.1 CONTINUING SUBORDINATION
The subordination of the Subordinated Debt on the terms of this
document constitutes a continuing subordination and will not be
affected by the repayment in whole or in part from time to time of the
Senior Debt.
8.2 OBLIGATIONS NOT AFFECTED
The subordination of the Subordinated Debt on the terms of this
document and the obligations of each Junior Creditor under this
document will not be abrogated, prejudiced or affected by:
(a) the granting of time or any other indulgence by the Senior
Creditor to any Debtor or to any other person;
(b) the taking, variation, compromise, exchange, renewal, or
release of or failure to perfect any rights against any asset
of or any rights under any Security Interest in respect of the
Senior Debt;
(c) the unenforceability, impossibility, illegality or invalidity
of any obligation of any Debtor to the Senior Creditor in
respect of any agreement or instrument under which the
Debtor's obligations in respect of the Senior Debt arise; or
(d) any other dealing, matter or thing which but for this
provision could or might operate to affect or discharge the
obligations of any Junior Creditor under this document.
9. NO COMPETITION
Until the Senior Creditor has received payment of the Senior Debt in
full no Junior Creditor will by reason of any payment or performance
under this document:
(a) be subrogated to any right or security which the Senior
Creditor may hold in respect of the Senior Debt or be entitled
to any right of contribution or indemnity; or
(b) claim, rank, prove or vote as a creditor of any Debtor or any
of the Debtor's Sureties in competition with the Senior
Creditor.
10. OTHER SECURITY
Each Junior Creditor waives any right it may have of requesting the
Senior Creditor to proceed against or enforce any other Security
Interest or to claim payment from any person before claiming the
benefit of this document.
11. COSTS AND EXPENSES
Each Debtor indemnifies the Senior Creditor against and must pay on
demand to the Senior Creditor all taxes, registration fees, costs,
charges, expenses and liabilities
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(including, but not limited to, all legal costs and disbursements on a
full indemnity basis) which the Senior Creditor may be liable to pay in
connection with:
(a) the negotiation, preparation, completion, registration or
stamping of this document; and
(b) the protection, enforcement or exercise or attempted
enforcement or exercise of any right, power, authority or
remedy conferred on the Senior Creditor under this document,
by law or otherwise.
12. SET OFF
The Senior Creditor may without any demand or notice, set off and apply
any or all indebtedness at any time owing by the Senior Creditor to any
Junior Creditor against any debt owing by that Junior Creditor to the
Senior Creditor whether or not that indebtedness or that debt is
immediately due and payable.
13. ASSIGNMENT
The Senior Creditor may at any time assign or otherwise deal with or
dispose of all or any of its rights or benefits under this document.
14. POWER OF ATTORNEY
14.1 GRANT
Each Junior Creditor for valuable consideration irrevocably appoints
the Senior Creditor and each Authorised Officer of the Senior Creditor
severally to be the Junior Creditor's attorneys and in the Junior
Creditor's name (or in the name of the attorney) and on the Junior
Creditor's behalf after the occurrence of an Event of Default or
Potential Event of Default:
(a) to do anything which the Junior Creditor is obliged to do
under this document;
(b) to do anything which in the opinion of the attorney:
(i) is necessary or expedient to give effect to any
right, power or remedy conferred on the Senior
Creditor; or
(ii) it is necessary or expedient that the Junior Creditor
do,
under this document;
(c) to sign or enter into (or both) all transactions, documents,
agreements and instruments which in the opinion of the
attorney it is necessary or expedient that the Junior Creditor
sign or enter into under this document; and
(d) generally to use the Junior Creditor's name in the exercise of
all or any of the powers conferred on the Senior Creditor by
or under this document, statute, the general law or otherwise,
and the Junior Creditor undertakes to ratify anything done by an
attorney under this power of attorney.
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14.2 DELEGATION BY ATTORNEY
Any attorney may delegate its powers (including the power to delegate)
to any person for any period and may revoke any delegation.
14.3 STATEMENT OF PURPOSE
The power of attorney created under this clause 14 is irrevocable and
is granted to secure the performance by each Junior Creditor of the
Junior Creditor's obligations under this document.
15. CERTIFICATES
A certificate signed by an Authorised Officer of the Senior Creditor
about a matter or about a sum payable to the Senior Creditor in
connection with this document is admissible in proceedings and is,
except where there is manifest error, conclusive evidence of the
matters stated.
16. NOTICES
16.1 WHO MAY SIGN A NOTICE
Any notice from or demand by the Senior Creditor to or on a Debtor or
Junior Creditor may (without limiting any other valid form of
execution) be signed by an Authorised Officer of the Senior Creditor or
by any solicitor acting for the Senior Creditor, whose signature may be
handwritten or printed or otherwise reproduced by mechanical means.
16.2 HOW A NOTICE MAY BE SENT
In addition to any method of service provided for by statute, a notice
or demand by or on behalf of the Senior Creditor is taken to have been
given to or made on a Debtor or Junior Creditor if:
(a) sent by telex or facsimile to the telex or facsimile number of
the Debtor or the Junior Creditor last known to the Senior
Creditor or, if more than one telex or facsimile number is
known to the Senior Creditor, to any such telex or facsimile
number;
(b) left for the Debtor or the Junior Creditor or sent by mail
(and by airmail if to an address outside Australia) to the
Debtor or the Junior Creditor at:
(i) any address of the Debtor or the Junior Creditor set
out in this document;
(ii) the Debtor or the Junior Creditor's usual abode or
place of business last known to the Senior Creditor;
(iii) the Debtor or the Junior Creditor's registered
office; or
(iv) any premises owned or occupied by the Debtor or the
Junior Creditor.
16.3 VALIDITY OF NOTICE
Service under clause 16.2 is valid even if:
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(a) the Winding Up of the relevant Debtor or Junior Creditor has
occurred or the Debtor or Junior Creditor is absent from the
place at or to which the notice or demand is left, delivered
or sent; or
(b) where the notice or demand is sent by post or otherwise, it is
returned unclaimed.
16.4 RECEIPT OF NOTICE
Any notice or demand is taken to have been received by the relevant
Debtor or Junior Creditor:
(a) if left or delivered personally, on the same day;
(b) if sent by post to an address in Australia, on the second
Business Day after the date of posting;
(c) if sent by post to an address outside Australia, on the fourth
Business Day after the date of posting;
(d) if sent by telex, on receipt of the Debtor or the Junior
Creditor's answerback code; and
(e) if sent by facsimile, on production of a transmission report
by the sender's facsimile machine indicating that the notice
or demand has been sent to the relevant number.
17. SEVERABILITY
17.1 PREFERRED CONSTRUCTION
A construction of this document which results in all provisions being
enforceable is to be preferred to a construction which does not so
result.
17.2 SEVERANCE
If, despite the application of clause 17.1 a provision of this document
is illegal or unenforceable:
(a) if the provision would not be illegal or unenforceable if a
word or words were omitted, that word or those words will be
severed; and
(b) in any other case, the whole provision will be severed,
and the remainder of this document will continue to have full force and
effect.
18. GOVERNING LAW AND JURISDICTION
This document is governed by the law of Queensland and each Debtor and
Junior Creditor irrevocably and unconditionally submits to the
non-exclusive jurisdiction of the courts of Queensland.
19. AGENT FOR SERVICE OF PROCESS
Each Debtor and Junior Creditor having its registered office outside
Queensland:
<PAGE> 16
14
(a) irrevocably appoints Collins Restaurants Management Pty Ltd
ACN 093 912 979 ('CRM') as its agent for service of process
relating to any proceedings before the courts and appellate
courts of the State of Queensland in connection with this
document;
(b) agrees that failure by CRM to notify it of the process will
not invalidate the proceedings concerned; and
(c) agrees that nothing shall affect the right to serve process in
any other manner permitted by law.
20. ATTORNEYS
Each attorney executing this document states that he or she has no
notice of the revocation of his or her power of attorney.
21. NOVATION AND TERMINATION OF EARLIER DEED
(a) The parties to this document, other than Sizzler Asia
Holdings, Inc. ('SAH') and Collins Restaurants Management Pty
Ltd ACN 093 912 979 ('CRM') are parties with Collins
Properties, Inc to a Subordination Deed dated 24 September
1997 (the 'earlier deed').
(b) By signing this document the parties agree:
(i) that SAH and CRM and each of the parties to the
earlier deed shall assume obligations towards each
other and acquire rights against each other as though
SAH and CRM were originally named in the earlier deed
as a Debtor (as defined in the earlier deed); and
(ii) SAH and CRM shall be deemed to be a party to the
earlier deed as a Debtor (as defined in the earlier
deed).
(c) To the extent that there is any inconsistency (other than
under this clause 21) between the term of this deed and the
earlier deed, the earlier deed prevails, subject to clause
21(b) of this deed, until the Restructure is complete. This
deed terminates the earlier deed (except in respect of any
liability arising under it prior to termination) from the time
that the Restructure is complete.
<PAGE> 17
15
EXECUTED as a deed.
THE COMMON SEAL of COLLINS FOODS )
GROUP PTY LTD ACN 009 937 900 is affixed )
in accordance with its constituent documents )
in the presence of )
-------------------------------------------- ----------------------------------
Authorised Officer/Director Authorised Officer/Director
-------------------------------------------- ----------------------------------
Please Print Full Name Please Print Full Name
THE COMMON SEAL of COLLINS FOODS )
INTERNATIONAL PTY LTD ARBN 009 980 250 is )
affixed in accordance with its constituent )
documents in the presence of )
-------------------------------------------- ----------------------------------
Authorised Officer/Director Authorised Officer/Director
-------------------------------------------- ----------------------------------
Please Print Full Name Please Print Full Name
THE COMMON SEAL of COLLINS INTERNATIONAL )
INC is affixed in accordance with its )
constituent documents in the presence of )
-------------------------------------------- ----------------------------------
Authorised Officer/Director Authorised Officer/Director
-------------------------------------------- ----------------------------------
Please Print Full Name Please Print Full Name
THE COMMON SEAL of COLLINS RESTAURANTS )
QUEENSLAND PTY LTD ACN 009 988 381 is )
affixed in accordance with its constituent )
documents in the presence of )
-------------------------------------------- ----------------------------------
Authorised Officer/Director Authorised Officer/Director
-------------------------------------------- ----------------------------------
Please Print Full Name Please Print Full Name
<PAGE> 18
16
THE COMMON SEAL of SIZZLER NEW ZEALAND )
LIMITED is affixed in accordance with its )
constituent documents in the presence of )
-------------------------------------------- ----------------------------------
Authorised Officer/Director Authorised Officer/Director
-------------------------------------------- ----------------------------------
Please Print Full Name Please Print Full Name
THE COMMON SEAL of SIZZLER SOUTH PACIFIC )
PTY LTD ARBN 010 713 952 is affixed in )
accordance with its constituent documents )
in the presence of )
-------------------------------------------- ----------------------------------
Authorised Officer/Director Authorised Officer/Director
-------------------------------------------- ----------------------------------
Please Print Full Name Please Print Full Name
THE COMMON SEAL of SIZZLER SOUTH-EAST ASIA )
INC is affixed in accordance with its )
constituent documents in the presence of )
-------------------------------------------- ----------------------------------
Authorised Officer/Director Authorised Officer/Director
-------------------------------------------- ----------------------------------
Please Print Full Name Please Print Full Name
THE COMMON SEAL of SIZZLER RESTAURANTS )
GROUP PTY LTD ACN 010 102 388 is affixed )
in accordance with its constituent )
documents in the presence of )
-------------------------------------------- ----------------------------------
Authorised Officer/Director Authorised Officer/Director
-------------------------------------------- ----------------------------------
Please Print Full Name Please Print Full Name
<PAGE> 19
17
THE COMMON SEAL of SIZZLER RESTAURANT )
SERVICES, INC is affixed in accordance with )
its constituent documents in the presence )
of
-------------------------------------------- ----------------------------------
Authorised Officer/Director Authorised Officer/Director
-------------------------------------------- ----------------------------------
Please Print Full Name Please Print Full Name
THE COMMON SEAL OF SIZZLER ASIA HOLDINGS, )
INC is affixed in accordance with its )
constituent documents in the presence of )
-------------------------------------------- ----------------------------------
Authorised Officer/Director Authorised Officer/Director
-------------------------------------------- ----------------------------------
Please Print Full Name Please Print Full Name
THE COMMON SEAL OF COLLINS RESTAURANTS )
MANAGEMENT PTY LTD ACN 093 912 979 is )
affixed in accordance with its )
constituent documents in the presence of )
-------------------------------------------- ----------------------------------
Authorised Officer/Director Authorised Officer/Director
-------------------------------------------- ----------------------------------
Please Print Full Name Please Print Full Name
THE COMMON SEAL of SIZZLER INTERNATIONAL, )
INC. is affixed in accordance with its )
constituent documents in the presence of )
-------------------------------------------- ----------------------------------
Authorised Officer/Director Authorised Officer/Director
-------------------------------------------- ----------------------------------
Please Print Full Name Please Print Full Name
<PAGE> 20
18
THE COMMON SEAL of SIZZLER INTERNATIONAL )
MARKS INC is affixed in accordance )
with its constituent documents in the )
presence of )
-------------------------------------------- ----------------------------------
Authorised Officer/Director Authorised Officer/Director
-------------------------------------------- ----------------------------------
Please Print Full Name Please Print Full Name
THE COMMON SEAL of RESTAURANT CONCEPTS OF )
AUSTRALIA, PTY LTD is affixed in accordance )
with its constituent documents in the )
presence of )
-------------------------------------------- ----------------------------------
Authorised Officer/Director Authorised Officer/Director
-------------------------------------------- ----------------------------------
Please Print Full Name Please Print Full Name
THE COMMON SEAL of SIZZLER FRANCHISE )
DEVELOPMENT, LTD is affixed in accordance )
with its constituent documents in the )
presence of )
-------------------------------------------- ----------------------------------
Authorised Officer/Director Authorised Officer/Director
-------------------------------------------- ----------------------------------
Please Print Full Name Please Print Full Name
THE COMMON SEAL of FURNACE CONCEPTS )
INTERNATIONAL, INC is affixed in accordance )
with its constituent documents in the )
presence of )
-------------------------------------------- ----------------------------------
Authorised Officer/Director Authorised Officer/Director
-------------------------------------------- ----------------------------------
Please Print Full Name Please Print Full Name
<PAGE> 21
19
THE COMMON SEAL of FURNACE CONCEPTS )
AUSTRALIA CORP ARBN 070 065 468 is affixed )
in accordance with its constituent )
documents in the presence of )
-------------------------------------------- ----------------------------------
Authorised Officer/Director Authorised Officer/Director
-------------------------------------------- ----------------------------------
Please Print Full Name Please Print Full Name
THE COMMON SEAL of RESTAURANT CONCEPTS )
INTERNATIONAL INC is affixed in accordance )
with its constituent documents in the )
presence of )
-------------------------------------------- ----------------------------------
Authorised Officer/Director Authorised Officer/Director
-------------------------------------------- ----------------------------------
Please Print Full Name Please Print Full Name
THE COMMON SEAL of SIZZLER AUSTRALIA PTY )
LTD ACN 010 060 876 is affixed in )
accordance with its constituent documents )
in the presence of )
-------------------------------------------- ----------------------------------
Authorised Officer/Director Authorised Officer/Director
-------------------------------------------- ----------------------------------
Please Print Full Name Please Print Full Name
<PAGE> 22
20
THE COMMON SEAL of COLLINS PROPERTY )
DEVELOPMENT PTY LTD ACN 010 539 616 is )
affixed in accordance with its constituent )
documents in the presence of )
-------------------------------------------- ----------------------------------
Authorised Officer/Director Authorised Officer/Director
-------------------------------------------- ----------------------------------
Please Print Full Name Please Print Full Name
THE COMMON SEAL of COLLINS FINANCE AND )
MANAGEMENT PTY LTD ACN 009 996 721 is )
affixed in accordance with its constituent )
documents in the presence of )
-------------------------------------------- ----------------------------------
Authorised Officer/Director Authorised Officer/Director
-------------------------------------------- ----------------------------------
Please Print Full Name Please Print Full Name
THE COMMON SEAL of COLLINS FOODS AUSTRALIA )
PTY LTD ACN 009 914 103 is affixed in )
accordance with its constituent documents )
in the presence of )
-------------------------------------------- ----------------------------------
Authorised Officer/Director Authorised Officer/Director
-------------------------------------------- ----------------------------------
Please Print Full Name Please Print Full Name
<PAGE> 23
21
SIGNED for and on behalf of WESTPAC BANKING ) Westpac Banking Corporation by
CORPORATION ARBN 007 457 141 by its duly ) its duly constituted Attorney:
constituted Attorney )
)
who certifies that he/she has no notice of )..................................
revocation of the powers granted pursuant )
to Power of Attorney No. )
in the presence of )
............................................
A Justice of the Peace
<PAGE> 24
22
ANNEXURE 'A'
ACCESSION DEED
DEED dated 2000
BETWEEN [NAME] Incorporated in [#] of [#] (the 'New Junior
Creditor')
AND WESTPAC BANKING CORPORATION ARBN 007 457 141 of 260
Queen Street, Brisbane ('Senior Creditor') for itself
and on behalf of all other parties to the
Subordination Deed
RECITAL
A. The Senior Creditor, Sizzler International, Inc and others entered into
a Subordination Deed dated 2000 ('Subordination Deed').
B. The New Junior Creditor proposes to become a Junior Creditor under the
Subordination Deed.
AGREEMENT
1. INTERPRETATION
1.1 Definitions
Expressions defined in the Subordination Deed have the same meaning in
this document.
1.2 Construction
Clause 1.2 of the Subordination Deed applies to this document as if
stated in it.
2. Novation
With effect from the date of this document:
(d) the New Junior Creditor and each of the parties to the
Subordination Deed shall assume obligations towards each other
and acquire rights against each other as though the New Junior
Creditor were originally named in the Subordination Deed as a
Junior Creditor; and
<PAGE> 25
23
(e) the New Junior Creditor shall be deemed a party to the
Subordination Deed as a Junior Creditor.
3. Notices
For the purposes of the Subordination Deed, the address for
correspondence of the New Junior Creditor is the address set out in the
Schedule.
4. Counterparts
This document may be executed in any number of counterparts. All of
such counterparts taken together shall be deemed to constitute the one
instrument.
5. Governing Law and Jurisdiction
This document is governed by the law of Queensland and each party to it
irrevocably and unconditionally submits to the non-exclusive
jurisdiction of the Courts of Queensland.
6. Agent for Service of Process
Each of the Debtors, Junior Creditors and New Junior Creditor having
its registered office outside Queensland:
(f) irrevocably appoints Collins Restaurants Management Pty Ltd
ACN 093 912 979 ('CRM') as its agent for service of process
relating to any proceedings before the courts and appellate
courts of the State of Queensland in connection with this
document;
(g) agrees that failure by CRM to notify it of the process will
not invalidate the proceedings concerned; and
(h) agrees that nothing shall affect the right to serve process in
any other manner permitted by law.
7. Attorneys
Each attorney executing this document states that he or she has no
notice of the revocation of his or her power of attorney.
<PAGE> 26
24
SCHEDULE
[ADDRESS OF NEW JUNIOR CREDITOR]
EXECUTED as a deed.
NEW JUNIOR CREDITOR:
SIGNED SEALED and DELIVERED for and on )
behalf of [#] by its attorney in the )
presence of )
-------------------------------------------- ----------------------------------
Signature of witness Attorney
--------------------------------------------
Name of witness (print)
OTHER PARTIES:
SIGNED SEALED and DELIVERED for and on )
behalf of WESTPAC BANKING CORPORATION for )
itself and on behalf of the other parties )
to the Subordination Deed by )
its duly constituted attorney in the
presence of:
-------------------------------------------- ----------------------------------
Signature of witness Attorney
--------------------------------------------
Name of witness (print)
