<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. ____)*
The First Commonwealth Fund, Inc.
(Name of Issuer)
Common Stock ($.01 par value)
(Title of Class of Securities)
31983F102
(CUSIP Number)
Meredith M. Brown, Esq.
Debevoise & Plimpton
875 Third Avenue
New York, NY 10022
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
January 11, 2000
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of ss.240.13d-1(e), (f) or (g), check the following box [ ].
Note: Schedules filed in paper format shall include a signed original and five
copies of the Schedule, including all exhibits. See ss.240.13d-7(b) for other
parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purposes of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
20899445.3
(Continued on the following pages)
<PAGE> 2
CUSIP No. 31983F102 13D Page 2 of 10
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Laurence Freedman
I.R.S. No.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (A) [ ]
(B) [ ]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
AF
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(D) OR 2(E) [ ]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Australia
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF
SHARES 72,223
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH 411,458
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH 72,223
10 SHARED DISPOSITIVE POWER
411,458
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
483,681
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[ ]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.2%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------
20899445.3
(Continued on the following pages)
<PAGE> 3
Page 3 of 10
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Brian Sherman
I.R.S. No.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (A) [ ]
(B) [ ]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
AF
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(D) OR 2(E) [ ]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Australia
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF
SHARES None
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH 411,458
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH None
10 SHARED DISPOSITIVE POWER
411,458
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
411,458
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[ ]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.4%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------
20899445.3
(Continued on the following pages)
<PAGE> 4
Page 4 of 10
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
EquitiLink Limited
I.R.S. No.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (A) [ ]
(B) [ ]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
WC, BK
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(D) OR 2(E) [ ]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New South Wales, Australia
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF
SHARES None
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH 226,600
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH None
10 SHARED DISPOSITIVE POWER
226,600
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
226,600
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[ ]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.4%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
HC, CO
- --------------------------------------------------------------------------------
20899445.3
<PAGE> 5
Page 5 of 10
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
EquitiLink U.S.A., Inc.
I.R.S. No. 521635331
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (A) [ ]
(B) [ ]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
WC, BK
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(D) OR 2(E) [ ]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF
SHARES None
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH 173,350
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH None
10 SHARED DISPOSITIVE POWER
173,350
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
173,350
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[ ]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.9%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
CO
- --------------------------------------------------------------------------------
20899445.3
<PAGE> 6
Page 6 of 10
Statement on Schedule 13D
Item 1. Security and Issuer.
The class of equity securities to which this statement relates
is the common stock, par value $.01 per share (the "Common Stock"), of The First
Commonwealth Fund, Inc. (the "Fund"), a corporation organized under the laws of
the State of Maryland and registered as an investment company under the
Investment Company Act of 1940, as amended (the "Investment Company Act"), which
has its principal executive offices at 800 Scudders Mill Road, Plainsboro, New
Jersey 08536.
Item 2. Identity and Background.
This Schedule 13D is being filed by Laurence Freedman, Brian
Sherman, EquitiLink Limited and EquitiLink U.S.A., Inc. ("EquitiLink U.S.A.";
together with Laurence Freedman, Brian Sherman and EquitiLink Limited, the
"Reporting Persons"). EquitiLink Limited is a company organized under the laws
of New South Wales, Australia, and is the holding company of EquitiLink
Australia Limited ("EAL"). EAL, a registered investment adviser, is the Fund's
Investment Adviser. EquitiLink Limited is a direct, wholly-owned subsidiary of
EquitiLink Holdings Limited, a holding company organized under the laws of New
South Wales, Australia ("EHL"). The principal business offices of EquitiLink
Limited and EHL are located at Level 3, 190 George Street, Sydney, NSW 2000,
Australia.
EquitiLink U.S.A. is a wholly-owned subsidiary of EquitiLink
International Management Limited, a registered investment adviser organized
under the laws of Jersey, Channel Islands ("EIML"), which is the Fund's
Investment Manager. EquitiLink U.S.A. engages in marketing for the EquitiLink
group. The principal business offices of EquitiLink U.S.A. are located at 45
Broadway, 31st Floor, New York, New York 10006. EIML's principal business
offices are located at P.O. Box 578, St. Helier, Jersey, Channel Islands, JE4
5XB.
Laurence Freedman and Brian Sherman indirectly own
approximately 85% of each of EHL and EIML.
The names, addresses, principal occupations and citizenship of
the executive officers and directors of EquitiLink Limited and EquitiLink
U.S.A., Inc. are set forth in Annex A hereto and are incorporated herein by
reference.
No person named in this Item 2, or in Annex A hereto, has been
convicted during the last five years in a criminal proceeding (excluding traffic
violations or similar misdemeanors), or has been during the last five years a
party to a civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding is or has been subject to any
civil judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state securities laws
or finding any violation with respect to such laws.
6
20899445.3
<PAGE> 7
Page 7 of 10
Item 3. Source and Amount of Funds or Other Consideration.
The shares of Common Stock acquired by the Reporting Persons
were acquired for an aggregate purchase price of approximately $4.9 million, of
which $1.9 million was borrowed pursuant to a Loan Agreement, dated October 25,
1999, between EquitiLink Limited and HSBC Bank Australia Limited (the "Loan
Agreement"). Funds borrowed pursuant to the Loan Agreement bear interest at an
adjustable rate currently equal to 6.39% per annum, after being adjusted down
from 7.01% on November 20, 1999. A copy of the Loan Agreement is filed as
Exhibit 1 hereto and is incorporated herein by reference. The balance of funds
used were obtained from the working capital of each entity acquiring shares of
Common Stock.
Item 4. Purpose of Transaction.
The Reporting Persons acquired the shares of Common Stock
reported herein for investment purposes in light of their confidence in the
Fund's long-term performance and their desire to participate as shareholders of
the Fund.
The Reporting Persons may acquire additional shares of Common
Stock, or dispose of shares of Common Stock, from time to time, in open market
or privately negotiated transactions. Except as set forth above, the Reporting
Persons have no plans or proposals with respect to any of the matters set forth
in paragraphs (a) through (i) of Item 4 of Schedule 13D.
Item 5. Interest in Securities of the Fund.
(a) The Reporting Persons beneficially own an aggregate of
483,681 shares of Common Stock, constituting approximately 5.2% of the
outstanding shares of Common Stock (computed on the basis of 9,266,209 shares of
Common Stock outstanding as of October 31, 2000 as reported in the Annual Report
on Form N-30D, filed with the Securities and Exchange Commission on December 30,
1999). In the aggregate, all persons named in Item 2 and Annex A hereto, which
is incorporated herein by reference, beneficially own 483,681 shares of Common
Stock, which represents 5.2% of the outstanding shares of Common Stock.
(b) Laurence Freedman (through Link Traders (Aust.) Pty
Limited, a private company controlled by Mr. Freedman) owns 72,223 shares of
Common Stock with sole voting and dispositive power for all such shares. Messrs.
Freedman and Sherman each share voting and dispositive power with each of
EquitiLink Limited, EquitiLink U.S.A. and EIML with respect to 226,600, 173,350
shares and 11,508 of Common Stock, respectively.
(c) During the past sixty days, the Reporting Persons have
purchased a total of 140,300 shares of Common Stock, all of which have been
purchased by EquitiLink Limited in open-market transactions on the New York
Stock Exchange, as set forth below:
7
20899445.3
<PAGE> 8
Page 8 of 10
Date Number of Shares Price Per Share
11/22/99 5,000 9.8000
11/29/99 8,000 9.5625
11/30/99 9,900 9.6218
12/01/99 5,900 9.6875
12/02/99 10,900 9.6875
12/03/99 10,000 9.75
12/06/99 7,000 9.6875
12/07/99 19,400 9.6769
12/08/99 2,400 9.5625
12/09/99 3,200 9.5625
12/10/99 17,700 9.625
12/16/99 5,000 9.5625
12/17/99 3,000 9.375
12/20/99 1,000 9.2188
12/21/99 5,000 9.3125
01/05/00 1,000 9.375
01/06/00 5,000 9.375
01/11/00 1,600 9.375
01/12/00 4,700 9.375
01/13/00 3,100 9.375
01/14/00 11,500 9.7418
(d) Not applicable.
(e) Not applicable.
8
20899445.3
<PAGE> 9
Page 9 of 10
Item 6. Contracts, Arrangements, Understandings or Relationships
With Respect to Securities of the Fund.
None.
Item 7. Materials to be Filed as Exhibits.
Exhibit 1. Loan Agreement, dated October 25, 1999, between
EquitiLink Limited and HSBC Bank Australia Limited.
Exhibit 2 Joint Filing Agreement, dated January 21, 2000,
among Laurence Freedman, Brian Sherman, EquitiLink Limited
and EquitiLink U.S.A.
9
20899445.3
<PAGE> 10
Page 10 of 10
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement with respect
to the undersigned is true, complete and correct.
Date: January 21, 2000
Laurence Freedman
/s/ Laurence Freedman
----------------------------
Brian Sherman
/s/ Brian Sherman
----------------------------
EquitiLink Limited
By: /s/ Barry Sechos
-------------------------
Name: Barry Sechos
Title: Director
EquitiLink U.S.A., Inc.
By: /s/ Richard P. Strickler
------------------------
Name: Richard P. Strickler
Title: Managing Director
10
20899445.3
<PAGE> 11
ANNEX A
EXECUTIVE OFFICERS AND DIRECTORS
The names of the members of the boards of directors and executive
officers of EquitiLink Limited, EquitiLink, U.S.A., their present principal
occupations and beneficial ownership of Common Stock are set forth below.
Unless otherwise indicated, each individual is a citizen of Australia and the
business address of each person is the address of the respective company with
which such person is associated.
1. EQUITILINK LIMITED
Level 3
190 George Street
Sydney, NSW 2000
Australia
<TABLE>
<CAPTION>
<S> <C> <C>
SHARES OF
COMMON STOCK
BENEFICIALLY
OWNED AND % OF
OUTSTANDING ON
NAME AND POSITION HELD PRINCIPAL OCCUPATIONS JANUARY 21, 2000
- --------------------------------------- -------------------------------------------------- ---------------------------------
- --------------------------------------- -------------------------------------------------- ---------------------------------
Brian Sherman Vice President, Director and Chairman, 411,458; 4.4%*
- Chairman The First Commonwealth Fund, Inc.;
President of The First Australia Fund,
Inc.; President and Director, The First
Australia Prime Income Fund, Inc.; Joint
Managing Director and Chairman, First
Australia Prime Income Investment Company
Limited; Chairman, EquitiLink Limited;
Chairman and Joint Managing Director,
EquitiLink Australia Limited; Chairman
and Director, EquitiLink Holdings Limited;
Director, EquitiLink International
Management Limited; Joint Managing
Director, MaxiLink Limited; Joint Managing
Director, First Resources Development Fund
Limited; Director, Ten Group Pty. Limited;
Director, Ten Network Holdings Limited;
Director, Sydney Organizing Committee
for the Olympic Games.
</TABLE>
1
20899445.3
<PAGE> 12
<TABLE>
<CAPTION>
<S> <C> <C>
SHARES OF
COMMON STOCK
BENEFICIALLY
OWNED AND % OF
OUTSTANDING ON
NAME AND POSITION HELD PRINCIPAL OCCUPATIONS JANUARY 21, 2000
- --------------------------------------- -------------------------------------------------- ---------------------------------
- --------------------------------------- -------------------------------------------------- ---------------------------------
Laurence Freedman President and Director, The First 483,681; 5.2%*
- Director Commonwealth Fund, Inc.; Chairman
and Vice President of the First
Australia Fund, Inc.; Vice
President, Director and
Chairman, The First Australia
Prime Income Fund, Inc.; Joint
Managing Director, First
Australia Prime Income
Investment Company Limited;
Founder and Joint Managing
Director, EquitiLink Australia
Limited; Director, EquitiLink
Limited; Director, EquitiLink
Holdings Limited; Director,
EquitiLink International
Management Limited; Chairman
and Joint Managing Director,
MaxiLink Limited
Ouma Sananikone-Fletcher Chief Executive Officer and Investment 0; 0%
- Director Director, EquitiLink Australia Limited;
Director, EquitiLink Holdings Limited
Barry Sechos Director and General Counsel, 0; 0%
- Director EquitiLink Australia Limited;
Director, EquitiLink Holdings Limited
</TABLE>
- ---------------
* Messrs. Freedman and Sherman each own 226,600, 173,350 and 11,508
shares of Common Stock indirectly through control of EquitiLink
Limited, EquitiLink U.S.A. and EIML, respectively. Mr. Freedman
owns 72,223 shares of Common Stock through Link Traders (Aust.)
Pty Limited, a private company he controls.
2
20899445.3
<PAGE> 13
2. EQUITILINK U.S.A., INC.
45 Broadway
31st Floor
New York, New York 10006
U.S.A.
<TABLE>
<CAPTION>
<S> <C> <C>
COMMON STOCK
BENEFICIALLY
OWNED AND % OF
OUTSTANDING ON
NAME AND POSITION HELD PRINCIPAL OCCUPATIONS JANUARY 21, 2000
- --------------------------------------- -------------------------------------------------- ---------------------------------------
- --------------------------------------- -------------------------------------------------- ---------------------------------------
Richard Strickler Managing Director, EquitiLink U.S.A., 0; 0%
- Director Inc.
- Citizen of the United States
David Manor Managing Director, EquitiLink 0; 0%
- Director International
P.O. Box 578 Management Limited
17 Bond Street
St. Helier, Jersey
Channel Islands JE4 5XB
</TABLE>
3
20899445.3
<PAGE> 1
LOAN AGREEMENT
EQUITILINK LIMITED
HSBC BANK AUSTRALIA LIMITED
A$35,000,000 FACILITY
ALLEN ALLEN & HEMSLEY
The Chifley Tower
2 Chifley Square
Sydney NSW 2000
Australia
Tel 61 2 9230 4000
Fax 61 2 9230 5333
(C) Copyright Allen Allen & Hemsley
<PAGE> 2
LOAN AGREEMENT ALLEN ALLEN & HEMSLEY
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C>
1. Definitions and Interpretation 1
1.1 Definitions 1
1.2 Interpretation 10
1.3 Document or agreement 11
1.4 Determination, statement and certificate 12
1.5 Current accounting practice 12
1.6 Listing requirements included as law 12
2. Purpose 12
3. Facility 12
4. Drawdown Notices 13
5. Principal Amount of Loans 13
5.1 Principal amount of Loans 13
5.2 Number of Loans 13
6. Selection of Funding Periods 13
7. Interest 13
7.1 Accrual 13
7.2 Payment 14
8. Fees 14
8.1 Line fee 14
9. Cancellation of Commitment 14
9.1 During Availability Period 14
9.2 At end of Availability Period 14
10. Repayment 14
11. Payments 14
</TABLE>
Page (i)
<PAGE> 3
LOAN AGREEMENT ALLEN ALLEN & HEMSLEY
- -------------------------------------------------------------------------------
<TABLE>
<S> <C>
11.1 Manner 14
11.2 Payment to be made on Business Day 14
11.3 Appropriation where insufficient moneys
available 15
11.4 Tax 15
12. Changes In Law 15
12.1 Increased costs 15
12.2 Survival of obligations 16
12.3 Prepayment on increased costs 16
12.4 Illegality 16
13. Currency Indemnity 17
13.1 General 17
13.2 Reimbursement 17
14. Interest on Overdue Amounts 17
14.1 Accrual 17
14.2 Payment 18
15. Indemnities 18
16. Control Accounts 18
17. Conditions Precedent 18
17.1 Conditions precedent to first Drawdown Notice 18
17.2 Conditions precedent to MaxiLink Shares
being counted for Weighted Average Security
Value 19
17.3 Conditions precedent to each Loan 20
18. Representations and Warranties 20
18.1 Representations and warranties 20
18.2 Reliance on representations and warranties 23
19. Undertakings 23
19.1 General undertakings 23
19.2 Loan to Weighted Aggregate Security Value 29
</TABLE>
Page (ii)
<PAGE> 4
LOAN AGREEMENT ALLEN ALLEN & HEMSLEY
- -------------------------------------------------------------------------------
<TABLE>
<S> <C>
19.3 Other financial undertakings 30
19.4 Term of undertakings 30
20. Events of Default 30
20.1 Events of Default 30
20.2 Consequences 34
21. Expenses 34
22. Stamp Duties 35
23. GST 35
24. Set-Off 35
25. Waivers, Remedies Cumulative 36
26. Severability of Provisions 36
27. Survival of Representations 36
28. Indemnity and Reimbursement Obligations 36
29. Moratorium Legislation 36
30. Consents and Opinions 37
31. Assignments 37
31.1 Assignment by Borrower 37
31.2 Assignment by Lender 37
31.3 Disclosure 37
31.4 Change of Lending Office 38
31.5 No increased costs 38
32. Notices 38
33. Authorised Officers 38
</TABLE>
Page (iii)
<PAGE> 5
LOAN AGREEMENT ALLEN ALLEN & HEMSLEY
- -------------------------------------------------------------------------------
<TABLE>
<S> <C>
34. Governing Law and Jurisdiction 38
35. Counterparts 38
36. Acknowledgement by Borrower 39
Annexure A 41
Drawdown Notice 41
Annexure B 42
Verification Certificate 42
</TABLE>
Page (iv)
<PAGE> 6
LOAN AGREEMENT ALLEN ALLEN & HEMSLEY
- --------------------------------------------------------------------------------
DATE October 25, 1999
- -------------
PARTIES
- -------------
1. EQUITILINK LIMITED (ACN 003 021 912) of Level 3, 190 George
Street, Sydney, New South Wales, 2000 (the BORROWER); and
2. HSBC BANK AUSTRALIA LIMITED (ACN 006 434 162) of 1 O'Connell
Street, Sydney, New South Wales, 2000 (the LENDER)
RECITAL
- -------------
The Borrower has requested the Lender to provide the Borrower
with a facility under which loans of up to A$35,000,000 may be
made available to the Borrower.
- --------------------------------------------------------------------------------
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
- --------------------------------------------------------------------------------
1.1 DEFINITIONS
The following definitions apply unless the context requires otherwise.
ACCOUNTS means profit and loss accounts, balance sheets and cashflow
statements together with any statements, reports (including any
directors' and auditors' reports) and notes attached to or intended to
be read with any of them.
ASSOCIATE in relation to an entity means:
(a) a Related Entity of that entity;
(b) an entity, the trustee or manager of a trust, or the
responsible entity of a Registered Scheme, which has a
Controlling Interest in that entity, or a Related Entity of
that entity;
(c) a Related Entity of an entity included in paragraph (b) or (e);
(d) a director of that entity or of an entity included in
paragraph (a), (b) or (c) or of the manager or of the trustee
of any trust included in paragraph (a), (b) or (c) or a
spouse, child, parent or sibling of that director;
(e) a corporation, the trustee or manager of a trust or the
responsible entity of a Registered Scheme in which one or more
entity or person mentioned in paragraph (a), (b), (c), (d),
(e), (f) or (g) alone or together has a Controlling Interest;
Page 1
<PAGE> 7
LOAN AGREEMENT ALLEN ALLEN & HEMSLEY
- --------------------------------------------------------------------------------
(f) the trustee of a discretionary trust of which an entity or
person included in paragraph (a), (b), (c), (d), (e) or (g) is
a beneficiary (whether or not through one or more other
discretionary trusts); or
(g) an entity of which a director of that entity or a Related
Entity of that entity is also a director.
For the purposes of this definition:
(i) where a person is a beneficiary of a discretionary trust, that
person will be taken to own, and control, all the assets of
that trust;
(ii) DIRECTOR has the meaning given in the Corporations Law; and
(iii) a person has a CONTROLLING INTEREST in a corporation or trust
if:
(A) the corporation or its directors, or the trustee or
manager of the trust or its directors, are
accustomed, or under an obligation, whether formal or
informal, to act in accordance with the directions,
instructions or wishes of that person or of that
person in concert with others; or
(B) the person has a relevant interest (as defined in the
Corporations Law) in total in more than 20% of the
issued or voting shares, units or other interests in
the corporation or trust (in number, voting power or
value), or would have that relevant interest if any
rights were exercised to subscribe for, or acquire or
convert into, shares, units or other interests which
are issued or unissued. The definition of relevant
interest applies as if units or other interests were
shares.
ASX means the Australian Stock Exchange.
ATTORNEY means any attorney appointed under this Agreement or any
Collateral Security.
AUTHORISATION includes:
(a) any consent, authorisation, registration, filing, lodgement,
agreement, notarisation, certificate, permission, licence,
approval, authority or exemption from, by or with a Government
Agency; or
(b) in relation to anything which will be fully or partly
prohibited or restricted by law if a Government Agency
intervenes or acts in any way within a specified period after
lodgement, filing, registration or notification, the expiry of
that period without intervention or action.
Page 2
<PAGE> 8
LOAN AGREEMENT ALLEN ALLEN & HEMSLEY
- --------------------------------------------------------------------------------
AUTHORISED OFFICER means:
(a) in respect of the Borrower, any director or secretary, or any
person from time to time nominated as an Authorised Officer by
the Borrower by a notice to the Lender accompanied by
certified copies of signatures of all new persons so
appointed; and
(b) in respect of the Lender, any person whose title or acting
title includes the word MANAGER, DIRECTOR or PRESIDENT or
cognate expressions, or any secretary or director.
AVAILABILITY PERIOD means the period commencing on the date of this
Agreement and ending on 19 October 2001.
BBR for a period means the rate determined by the Lender to be its
buying rate at or about 10am on the first day of the period for bills
of exchange which are accepted by an Australian bank selected by the
Lender and which have a term equivalent to the period. That buying rate
will be expressed as a yield percent per annum to maturity. If there
are no buying rates the rate will be the rate determined by the Lender
to be its cost of funds.
Rates will be expressed as a yield percent per annum to maturity.
BILL means a BILL OF EXCHANGE as defined in the Bills of Exchange Act
1909.
BUSINESS DAY means a weekday on which banks are open for business in
Sydney.
CHARGE means:
(a) the deed dated 20 November 1998, as amended, between EHL, the
Borrower and the Lender under which EHL and the Borrower
charge all their assets and undertaking to secure the Secured
Money; or
(b) the deed dated 27 November 1998, as amended, between EAL and
the Lender under which EAL charges all its assets and
undertaking to secure the Secured Money.
COLLATERAL SECURITY means any Security Interest, Guarantee or other
document or agreement at any time created or entered into as security
for any Secured Money.
COMMITMENT means A$35,000,000 as reduced or cancelled under this
Agreement.
CURRENT MARKET VALUE means in relation to a listed Marketable Security
the weighted average of all trades in that Marketable Security on the
day on which it is calculated.
DRAWDOWN DATE means the date on which any accommodation under this
Agreement is or is to be drawn.
DRAWDOWN NOTICE means a notice under clause 4.
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EAL means EquitiLink Australia Limited (ACN 002 123 364).
EAL SHARE MORTGAGE means the share mortgage entered into on 27 November
1998 by EAL over the shares it holds in Ten Network Holdings Limited in
favour of the Lender.
EBIT means in respect of any period the consolidated profit of the
Borrower and its controlled entities plus the amount of any Tax and
Interest Expense for that period to the extent deducted in arriving at
that profit, all as shown in the Accounts for that period.
EHL means EquitiLink Holdings Limited (ACN 082 736 829).
EIML means EquitiLink International Management Limited a company
incorporated in the Channel Islands of Union House, Union Street, St
Helier, Jersey Channel Islands.
EIML FACILITY means the facility letter dated 29 July 1998 between EIML
and the Lender as amended.
EIML SHARE MORTGAGE means the share mortgage dated 29 July 1998 by EIML
over the shares it holds in Ten Network Holdings in favour of the
Lender.
EL AUSTRALIAN SHARE MORTGAGE means any share mortgage entered into at
any time by the Borrower over the shares it holds in Challenger
International Limited in favour of the Lender.
EL US SHARE MORTGAGE means any share mortgage entered into at any time
by the Borrower over any shares it holds in The First Australia Fund,
Inc. or The First Commonwealth Fund, Inc. in favour of the Lender.
EUSA means EquitiLink USA, Inc. of Level 31, 45 Broadway, New York.
EUSA SHARE MORTGAGE means any share mortgage entered into at any time
by EUSA over any shares it holds in The First Australia Fund, Inc. or
The First Commonwealth Fund, Inc. in favour of the Lender.
ENVIRONMENTAL LAW means a provision of a law or a law, which relates to
an aspect of planning, the environment or health.
EVENT OF DEFAULT means any of the events specified in clause 20.
FINANCE DEBT means any indebtedness, present or future, actual or
contingent in respect of money borrowed or raised or any financial
accommodation whatever. It includes indebtedness under or in respect of
a negotiable or other financial instrument, Guarantee, interest, gold
or currency exchange, hedge or other arrangement of any kind,
redeemable share, share the subject of a Guarantee, discounting
arrangement, finance or capital Lease, hire purchase, deferred purchase
price (for more than 90 days) of an asset or service or an obligation
to deliver goods or other property or provide services
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LOAN AGREEMENT ALLEN ALLEN & HEMSLEY
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paid for in advance by a financier or in relation to another financing
transaction.
FUNDING PERIOD means a period for the fixing of interest rates for, and
the funding of, a Loan. That period commences on the Drawdown Date of
that Loan and has a duration specified in the Drawdown Notice in
respect of that Loan.
GOVERNMENT AGENCY means any government or any governmental,
semi-governmental or judicial entity or authority. It also includes any
self-regulatory organisation established under statute or any stock
exchange.
GST means any goods and services or similar tax, together with any
related interest, penalties, fines or other charge.
GUARANTEE means any guarantee, indemnity, letter of credit, legally
binding letter of comfort or suretyship. It includes any other
obligation or irrevocable offer (whatever called and of whatever
nature):
(a) to pay or to purchase;
(b) to provide funds (whether by the advance of money, the
purchase of or subscription for shares or other securities,
the purchase of assets, rights or services, or otherwise) for
the payment or discharge of;
(c) to indemnify against the consequences of default in the
payment of; or
(d) to be responsible otherwise for,
an obligation or debt of another person, a dividend, distribution,
capital or premium on shares or other interests, or the solvency or
financial condition of another person.
GUARANTOR means:
(a) EAL;
(b) EHL; or
(c) EIML.
INTANGIBLE ASSETS means goodwill, patents, trade marks, design rights,
franchises, licences, mastheads, future tax benefits, underwriting and
formation expenses and any items which according to current accounting
practice are regarded as intangible assets.
INTELLECTUAL PROPERTY means any intellectual or industrial property
including:
(a) a patent, trade mark or service mark, copyright, registered
design, trade secret or confidential information; or
(b) a licence or other right to use or to grant the use of any of
the above or to be the registered proprietor or user of any of
the above.
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INTEREST means all interest and amounts in the nature of interest or of
similar effect to interest or regarded as interest according to current
accounting practice.
It includes dividends on any share included as Finance Debt, the
interest component of rent under a finance lease or hire purchase
arrangement, the discount and acceptance fee on bills of exchange, and
line, commitment, letter of credit, guarantee and similar fees (but not
unused line fees and establishment, arrangement and other up front
fees).
INTEREST EXPENSE in a period means all Interest payable by the Borrower
and its controlled entities and accrued in that period on a
consolidated basis as shown in the Accounts for that period.
LEASE means:
(a) any lease, charter, hire purchase or hiring arrangement of any
property (including a right to use Intellectual Property or a
franchise);
(b) an agreement under which property is or may be used or
operated by a person other than the owner; or
(c) an agreement or arrangement under which property is or may be
managed or operated by a person other than the owner, and the
operator or manager or its Related Entity or Associate
(whether in the same or another agreement or arrangement) is
required to make or assure minimum, fixed or floating rate
payments of a periodic nature.
LIQUIDATION includes receivership, compromise, arrangement,
amalgamation, administration, reconstruction, winding up, dissolution,
assignment for the benefit of creditors, bankruptcy.
LOAN means each loan lent or to be lent under this Agreement that has
the same Funding Period.
LOAN TO WEIGHTED AGGREGATE SECURITY VALUE RATIO means at any time the
aggregate amount of the principal outstanding under the EIML Facility
and this Agreement at that time, expressed as a percentage of the
Weighted Aggregate Security Value at that time. For example, if the
aggregate principal outstanding is $105 and the Weighted Aggregate
Security Value is $100, the Loan to Weighted Aggregate Security Value
Ratio is 105%.
MARGIN means 1% pa.
MARKETABLE SECURITY has the meaning given in the Corporations Law, but
also includes:
(a) anything referred to in the exceptions to the definition of
DEBENTURE in the Corporations Law;
(b) a unit or other interest in a trust or partnership;
(c) a negotiable instrument; and
(d) a right or an option in respect of a Marketable Security,
whether issued or unissued, including any of the above.
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MATERIAL ADVERSE EFFECT means, in the reasonable opinion of the Lender,
a material adverse effect on the ability of a Relevant Company to
perform its obligations under a Transaction Document, on the security
of the Lender or on the financial condition or business of a Relevant
Company.
MATERIAL DOCUMENT means:
(a) a Transaction Document; or
(b) another document or agreement which is material to the
business of the Borrower, the Mortgaged Property or the
security of the Lender, or which is specified by the Lender as
being so.
MAXILINK means MaxiLink Limited (ACN 003 236 173).
MAXILINK MORTGAGOR means a mortgagor under a MaxiLink Share Mortgage.
MAXILINK SHARE MORTGAGE means any Security Interest entered into by any
person over shares in MaxiLink in favour of the Lender.
MORTGAGED PROPERTY means the property mortgaged or charged by a Charge,
a Share Mortgage or any Collateral Security.
NET WORTH means at any time Total Tangible Assets less Total
Liabilities at that time.
POTENTIAL EVENT OF DEFAULT means anything which with notice, time or
both would become an Event of Default.
POWER means a power, right, authority, discretion or remedy which is
conferred on the Lender or a Receiver or Attorney by:
(a) any Transaction Document; or
(b) law in relation to a Transaction Document.
PRINCIPAL OUTSTANDING means the total principal amount of all
outstanding Loans.
RECEIVER means a receiver or receiver and manager appointed under this
Agreement or any Collateral Security.
REGISTERED SCHEME has the meaning given to it in the Corporations Law.
RELATED ENTITY means an entity which is related within the meaning of
s50 of the Corporations Law, but as if SUBSIDIARY has the meaning given
in this Agreement and BODY CORPORATE includes any entity (including a
trust).
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RELEVANT COMPANY means:
(a) the Borrower;
(b) a Guarantor;
(c) EUSA;
(d) any other Subsidiary of the Borrower or a Guarantor; or
(e) another person who gives or creates Collateral Security
(including a MaxiLink Mortgagor).
REPAYMENT DATE means 19 October 2001.
SATISFACTORY GUARANTEE means a Guarantee in respect of the Secured
Money where the Lender has received documents or evidence in connection
with the Guarantee satisfactory to the Lender (including, where
requested, opinions).
SECURED MONEY means all money which the Borrower (whether alone or not)
is or at any time may become actually or contingently liable to pay to
or for the account of the Lender (whether alone or not) for any reason
whatever under or in connection with a Transaction Document.
It includes money by way of principal, interest, fees, costs,
indemnities, charges, duties or expenses or payment of liquidated or
unliquidated damages under or in connection with a Transaction
Document, or as a result of a breach of or default under or in
connection with a Transaction Document.
Where the Borrower would have been liable but for its Liquidation, it
will be taken still to be liable.
SECURITY INTEREST includes any mortgage, pledge, lien or charge or any
security or preferential interest or arrangement of any kind. It
includes:
(a) anything which gives a creditor priority to other creditors
with respect to any asset; and
(b) retention of title other than in the ordinary course of
day-to-day trading and a deposit of money by way of security
but it excludes a charge or lien arising in favour of a
Government Agency by operation of statute unless there is
default in payment of moneys secured by that charge or lien.
SHARE MORTGAGE means:
(a) the EAL Share Mortgage;
(b) the EIML Share Mortgage;
(c) the EL Australian Share Mortgage;
(d) any MaxiLink Share Mortgage;
(e) any EUSA Share Mortgage; or
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(f) any EL US Share Mortgage.
SUBSIDIARY has the meaning given in the Corporations Law, but an entity
will also be taken to be a Subsidiary of an entity if it is controlled
by that entity (expressions used in this paragraph have the meanings
given for the purposes of chapter 2M of the Corporations Law) and,
without limitation:
(a) a trust may be a Subsidiary, for the purposes of which a unit
or other beneficial interest will be regarded as a share; and
(b) an entity may be a Subsidiary of a trust if it would have been
a Subsidiary if that trust were a corporation.
SYSTEM means all equipment and computer systems (including hardware,
equipment with embedded computer chips, software, networks, interfaces
and data storage) used by the Borrower, a Guarantor and/or its
Subsidiaries which are material to its core business.
TAX includes any tax, levy, impost, deduction, charge, rate, duty,
compulsory loan or withholding which is levied or imposed by a
Government Agency, and any related interest, penalty, charge, fee or
other amount.
TOTAL LIABILITIES means at any time the total amount shown by the
latest Accounts of all liabilities of the Borrower and its controlled
entities on a consolidated basis, including all provisions.
TOTAL TANGIBLE ASSETS means at any time the total value of all assets
of the Borrower and its controlled entities on a consolidated basis as
shown by the latest Accounts but after deducting:
(a) all Intangible Assets; and
(b) any amount by which the book value of an asset other than a
listed Marketable Security is written up after the date of
this Agreement except where it has been written up in
accordance with a valuation by a qualified independent valuer
approved by the Lender,
where:
(i) in respect of listed Marketable Securities, the value is the
Current Market Value of those Marketable Securities; and
(ii) in respect of all other assets, the value is the book value.
TRANSACTION DOCUMENT means:
(a) this Agreement;
(b) the EIML Facility;
(c) any Charge;
(d) any Share Mortgage;
(e) any Guarantee given by a Guarantor which relates to any
Secured Moneys;
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LOAN AGREEMENT Allen Allen & Hemsley
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(f) any hedging or futures arrangement entered into in relation to
shares in The First Australian Fund, Inc.
(g) any Collateral Security;
(h) any letter from the Lender to a Guarantor and/or the Borrower
agreeing that a document or agreement is a Finance Document or
Transaction Document for the purpose of a Charge or Share
Mortgage;
(i) any other document or agreement defined in the EIML Facility
or this Agreement as a Transaction Document or Finance
Document or which at any time the Lender and the Borrower
agree is to be a Transaction Document for the purposes of this
Agreement; or
(j) a document or agreement entered into or provided under or in
connection with, or for the purpose of amending or novating,
any of the above. It includes a written undertaking by or to a
party or its lawyers under or in relation to any of the above.
UNDRAWN COMMITMENT means the Commitment less the total principal amount
of all outstanding Loans.
YEAR 2000 COMPLIANT means, in respect of a System, that neither its
performance nor functionality is likely to be materially adversely
affected by dates prior to, during or after the year 2000 and that, in
particular:
(a) no value for current date causes any interruption of the
System;
(b) date based functionality of the System behaves consistently
for dates prior to, during and after year 2000;
(c) in all interfaces and data storage, the century in any date
must be specified either explicitly or by unambiguous
algorithms or inferencing rules; and
(d) the Year 2000 must be recognised as a leap year.
WEIGHTED AGGREGATE SECURITY VALUE means at any time the market value at
that time (as reasonably determined by the Lender) of all Marketable
Securities which are Mortgaged Property multiplied by:
(a) 0.5; or
(b) where those Marketable Securities are shares in The First
Australia Fund, Inc. which are the subject of a hedging
arrangement acceptable to the Lender, 0.7.
1.2 INTERPRETATION
Headings are for convenience only and do not affect interpretation. The
following rules apply unless the context requires otherwise.
(a) The singular includes the plural and the converse.
(b) A gender includes all genders.
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LOAN AGREEMENT ALLEN ALLEN & HEMSLEY
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(c) Where a word or phrase is defined, its other grammatical forms
have a corresponding meaning.
(d) A reference to a person, corporation, trust, partnership,
unincorporated body or other entity includes any of them.
(e) A reference to a clause, annexure or schedule is a reference
to a clause of, or annexure or schedule to, this Agreement.
(f) A reference to a party to this Agreement or another agreement
or document includes the party's successors and permitted
substitutes or assigns.
(g) A reference to legislation or to a provision of legislation
includes a modification or re-enactment of it, a legislative
provision substituted for it and a regulation or statutory
instrument issued under it.
(h) A reference to WRITING includes a facsimile transmission and
any means of reproducing words in a tangible and permanently
visible form.
(i) A reference to CONDUCT includes an omission, statement or
undertaking, whether or not in writing.
(j) Mentioning anything after INCLUDE, INCLUDES or INCLUDING does
not limit what else might be included.
(k) A reference to DISCOUNTING a Bill includes selling it as agent
for the Borrower.
(l) A reference to an ASSET includes any real or personal, present
or future, tangible or intangible property or asset (including
intellectual property) and any right, interest, revenue or
benefit in, under or derived from the property or asset.
(m) An Event of Default SUBSISTS until it has been waived in
writing by the Lender.
(n) A reference to an amount for which a person is CONTINGENTLY
LIABLE includes an amount which that person may become
actually or contingently liable to pay if a contingency
occurs, whether or not that liability will actually arise.
(o) All references to TIME are to Sydney time.
1.3 DOCUMENT OR AGREEMENT
A reference to:
(a) an AGREEMENT includes a Security Interest, Guarantee,
undertaking, deed, agreement or legally enforceable
arrangement whether or not in writing; and
(b) a DOCUMENT includes an agreement (as so defined) in writing or
a certificate, notice, instrument or document.
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A reference to a specific agreement or document includes it as amended,
novated, supplemented or replaced from time to time, except to the
extent prohibited by this Agreement.
1.4 DETERMINATION, STATEMENT AND CERTIFICATE
Except where otherwise provided in this Agreement any determination,
statement or certificate by the Lender or an Authorised Officer of the
Lender provided for in this Agreement is conclusive. It binds the
parties in the absence of manifest error.
1.5 CURRENT ACCOUNTING PRACTICE
A reference to CURRENT ACCOUNTING PRACTICE is to accounting principles
and practices applying by law or otherwise generally accepted in
Australia, consistently applied. A reference to an accounting term is
to be interpreted according to those principles and practices.
1.6 LISTING REQUIREMENTS INCLUDED AS LAW
A listing rule or business rule of a stock exchange (as defined in s603
of the Corporations Law) will be regarded as a LAW.
2. PURPOSE
- --------------------------------------------------------------------------------
The Borrower shall use the net proceeds of all Loans to purchase shares
in The First Australian Fund, Inc. or The First Commonwealth Fund, Inc.
and for no other purpose.
3. FACILITY
- --------------------------------------------------------------------------------
(a) Subject to this Agreement, whenever the Borrower requests a
Loan in a Drawdown Notice, the Lender will make available that
Loan to the Borrower on the relevant Drawdown Date to the
account specified in the Drawdown Notice.
(b) The Lender need not make a Loan available if as a result the
Principal Outstanding would exceed the Commitment.
(c) The Borrower shall repay each Loan on the last day of its
Funding Period except to the extent it is redrawn on that day.
(d) If all or part of a Loan is redrawn on the last day of its
Funding Period, then on that day the Borrower and the Lender
will not be obliged to repay or make available the amount of
the Loan which is being redrawn.
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4. DRAWDOWN NOTICES
- --------------------------------------------------------------------------------
Whenever the Borrower wishes to make a drawing it shall give to the
Lender an irrevocable Drawdown Notice substantially in the form of
annexure A. That Drawdown Notice must be received by the Lender by 11am
3 Business Days before the proposed Drawdown Date (which must be a
Business Day).
5. PRINCIPAL AMOUNT OF LOANS
- --------------------------------------------------------------------------------
5.1 PRINCIPAL AMOUNT OF LOANS
The Borrower shall ensure that each Loan is a minimum of A$1,000,000
and a whole multiple of A$500,000 or the Undrawn Commitment.
5.2 NUMBER OF LOANS
The Borrower shall ensure that there are no more than 5 Loans
outstanding at any time.
6. SELECTION OF FUNDING PERIODS
- --------------------------------------------------------------------------------
(a) Subject to this clause, the Borrower may only select Funding
Periods of 30, 60 or 90 days.
(b) The Borrower may select any other period agreed by the Lender.
(c) If a Funding Period ends on a day which is not a Business Day,
that Funding Period will be extended to the next Business Day.
(d) If a Funding Period of a number of months commences on a date
in a month and there is no corresponding date in the month in
which it is to end, it will end on the last Business Day of
the latter month.
(e) No Funding Period may extend beyond the Repayment Date. The
Borrower shall select Funding Periods so as to ensure that the
Repayment Date coincides with the last day of Funding Periods
of all outstanding Loans.
(f) If the Borrower fails to select Funding Periods complying with
this clause the Lender may vary any Drawdown Notice to ensure
compliance.
7. INTEREST
- --------------------------------------------------------------------------------
7.1 ACCRUAL
Interest accrues from day to day on the outstanding principal amount of
each Loan at the rate determined by the Lender to be the sum of the
Margin and the BBR for the relevant Funding Period.
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7.2 PAYMENT
The Borrower shall pay accrued interest in arrears on the last day of
each Funding Period and on repayment or prepayment of all or the
relevant part of the Loan.
8. FEES
- --------------------------------------------------------------------------------
8.1 LINE FEE
(a) A line fee accrues at 0.20% per annum on the daily amount of
the Commitment from the date of this Agreement.
(b) The Borrower shall pay to the Lender the line fee in advance
on the date of this Agreement and on the first Business Day of
each calendar quarter calculated on the Commitment as at the
date of payment. It is not refundable.
9. CANCELLATION OF COMMITMENT
- --------------------------------------------------------------------------------
9.1 DURING AVAILABILITY PERIOD
On giving not less than 3 Business Days irrevocable notice to the
Lender the Borrower may cancel all or part of the Undrawn Commitment
during the Availability Period. A partial cancellation must be in a
minimum of A$1,000,000 and a whole multiple of A$1,000,000 unless the
Lender agrees otherwise.
9.2 AT END OF AVAILABILITY PERIOD
At the close of business on the last day of the Availability Period the
Commitment will be cancelled.
10. REPAYMENT
- --------------------------------------------------------------------------------
(a) The Borrower shall repay the Principal Outstanding on the
Repayment Date.
(b) The Borrower may not repay all or any part of the Principal
Outstanding other than on the last day of a Funding Period.
11. PAYMENTS
- --------------------------------------------------------------------------------
11.1 MANNER
The Borrower shall make all payments under any Transaction Document:
(a) by bank cheque delivered to the Lender at its address for
service of notices or by transfer of immediately available
funds to the account
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specified by the Lender, in either case by 11am (local time)
on the due date; and
(b) without set-off, counterclaim or other deduction, except any
compulsory deduction for Taxation.
11.2 PAYMENT TO BE MADE ON BUSINESS DAY
If any payment is due on a day which is not a Business Day, the due
date will be the next Business Day.
11.3 APPROPRIATION WHERE INSUFFICIENT MONEYS AVAILABLE
The Lender may appropriate amounts it receives among amounts due as it
sees fit. This will override any appropriation made by the Borrower.
11.4 TAX
If the Borrower is required to deduct any tax from any payment (except
a tax on the Lender's overall net income), then:
(a) the Borrower must pay that amount to the appropriate authority
and promptly give the Lender evidence of payment; and
(b) the amount payable is increased so that (after deducting that
tax and paying any taxes on the increased amount) the Lender
receives the same amount it would have received had no
deduction been made.
12. CHANGES IN LAW
- --------------------------------------------------------------------------------
12.1 INCREASED COSTS
Whenever the Lender determines that a Change in Law (as defined below)
has the effect of:
(a) increasing the Lender's cost of funding or maintaining any
Loan or the Commitment, or reducing the Lender's or any of its
holding companies' return or amounts received in respect of
any Transaction Document; or
(b) reducing the Lender's or any of its holding companies' return
on capital directly or indirectly allocated to any Loan or the
Commitment (including because more capital needs to be
allocated to any Loan or the Commitment or cannot be used
elsewhere),
then it will promptly notify the Borrower, who must pay the Lender the
amount the Lender certifies is necessary to compensate it or the
holding company (as the case may be). That certificate will give an
outline of the calculation, and will be conclusive and bind the
Borrower in the absence of manifest error.
If the Borrower so requests, the Lender will use reasonable endeavours
to avoid or minimise the effect, but it is not a defence that the
effect could have been avoided or minimised.
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A CHANGE IN LAW is the introduction of, or a change in, any law,
official directive, ruling or request or a change in its interpretation
or application. If it does not have the force of law, it must be one
with which responsible banks or financial institutions would comply.
Without limitation, it includes any of these circumstances which
relates to capital adequacy, special deposit, liquidity, reserve, prime
assets, tax or prudential requirements (except a change in tax on
overall net income).
12.2 SURVIVAL OF OBLIGATIONS
This clause survives the repayment of any relevant Loan and the
termination of this Agreement.
12.3 PREPAYMENT ON INCREASED COSTS
(a) Within 60 days after:
(i) the Borrower receives a notice under clause 12.1; or
(ii) the Borrower becomes aware that as a result of the
making of, or a change in the interpretation or
application by any Government Agency of, any law or
treaty, the Borrower is or will become obliged to
make any additional payment under clause 11.4 or 23,
the Borrower may notify the Lender that it wishes to prepay
any Loan affected.
(b) The notification will be irrevocable. The Borrower shall
prepay in accordance with it on the last day of the relevant
Funding Period current when the notification is given.
12.4 ILLEGALITY
If the making of any law or treaty, or a change in the interpretation
or application by any Government Agency of any law or treaty, makes it
unlawful or impracticable for the Lender to make, fund or maintain the
facility under this Agreement:
(a) the Lender may terminate the Commitment by notice to the
Borrower;
(b) if required by the law or treaty, or if necessary to prevent
or remedy a breach of the law or treaty, the Borrower shall
prepay the Principal Outstanding, together with all interest,
fees and other amounts payable under this Agreement; and
(c) the Borrower shall make the prepayment immediately or, if in
the opinion of the Lender delay in prepayment is permitted by,
or will not cause a breach of, the law or treaty, no later
than the latest permitted day.
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13. CURRENCY INDEMNITY
- --------------------------------------------------------------------------------
13.1 GENERAL
The Borrower shall indemnify the Lender against any deficiency which
arises whenever for any reason (including as a result of a judgment or
order or Liquidation:
(a) the Lender receives or recovers an amount in one currency (the
PAYMENT CURRENCY) in respect of an amount denominated under a
Transaction Document in another currency (the DUE CURRENCY);
and
(b) the amount actually received or recovered by the Lender under
its normal practice when it converts the Payment Currency into
the Due Currency is less than the relevant amount of the Due
Currency.
13.2 REIMBURSEMENT
Where an amount to be reimbursed or indemnified against under a
Transaction Document is denominated in a currency other than Australian
dollars, if the Lender so requests, the Borrower shall reimburse or
indemnify it against the amount of Australian dollars which the Lender
certifies that it used to buy the relevant amount of the other currency
in accordance with its normal procedures. If the Lender does not so
request, the Borrower shall reimburse or indemnify it in that other
currency.
14. INTEREST ON OVERDUE AMOUNTS
- --------------------------------------------------------------------------------
14.1 ACCRUAL
Except where the relevant Transaction Document provides otherwise,
interest accrues on each unpaid amount which is due and payable by the
Borrower under or in respect of any Transaction Document (including
interest under this clause):
(a) on a daily basis up to the date of actual payment from (and
including) the due date or, in the case of an amount payable
by way of reimbursement or indemnity, the date of disbursement
or loss, if earlier;
(b) both before and after judgment (as a separate and independent
obligation); and
(c) at the rate determined by the Lender to be the sum of 2% per
annum plus the higher of:
(i) the rate (if any) applicable to the unpaid amount
immediately before the due date; and
(ii) the Lender's base lending rate from time to time,
plus the Margin.
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14.2 PAYMENT
The Borrower shall pay interest accrued under this clause on demand and
on the last Business Day of each calendar quarter. That interest is
payable in the currency of the unpaid amount on which it accrues.
15. INDEMNITIES
- --------------------------------------------------------------------------------
The Borrower shall indemnify the Lender and each Receiver and Attorney
against any loss, cost, liability or expense (including legal costs on
a full indemnity basis) which the Lender (or any officer or employee of
the Lender) incurs as a result of or in connection with:
(a) any Event of Default or breach of a Transaction Document;
(b) any exercise or attempted exercise of any Power or any failure
to exercise any Power;
(c) the Mortgaged Property or the existence of any interest in or
control or Power with respect to the Mortgaged Property;
(d) a Loan requested in a Drawdown Notice not being provided for
any reason (including failure to fulfil a condition precedent
but excluding default by the Lender); or
(e) the Lender receiving payments of principal in respect of any
Loan before the last day of a Funding Period relating to the
Loan for any reason, including prepayment in accordance with
this Agreement.
Without limitation the indemnity will cover any amount determined by
the Lender to be incurred because of the liquidation or re-employment
of deposits or other funds acquired or contracted for by the Lender to
fund or maintain any Loan or amount (including loss of margin) and
because of the termination or reversing of any agreement or arrangement
entered into by the Lender to fix, hedge or limit its effective cost of
funding or maintaining any Loan or amount.
16. CONTROL ACCOUNTS
- --------------------------------------------------------------------------------
The accounts kept by the Lender constitute sufficient evidence, unless
proven wrong, of the amount at any time due from the Borrower under
this Agreement.
17. CONDITIONS PRECEDENT
- --------------------------------------------------------------------------------
17.1 CONDITIONS PRECEDENT TO FIRST DRAWDOWN NOTICE
The right of the Borrower to give the first Drawdown Notice and the
obligations of the Lender under this Agreement to make Loans are
subject to the condition precedent that the Lender receives all of the
following in form and substance satisfactory to the Lender.
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LOAN AGREEMENT ALLEN ALLEN & HEMSLEY
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(a) (VERIFICATION CERTIFICATE) A certificate in relation to the
Borrower, each Guarantor and EUSA given by a director
substantially in the form of annexure B with the attachments
referred to and dated not earlier than 7 days before the first
Drawdown Date.
(b) (REGISTRATION OF CHARGES) Evidence that each Charge and each
Share Mortgage except the EUSA Share Mortgage and any MaxiLink
Share Mortgage has been provisionally registered by the
Australian Securities and Investments Commission.
(c) (STAMPING) Evidence that each Charge and each Share Mortgage
except the EUSA Share Mortgage, the EL US Share Mortgage and
any MaxiLink Share Mortgage has been lodged for stamping at
the Office of State Revenue with a cheque for the appropriate
stamp duty.
(d) (TRANSACTION DOCUMENTS) Duly executed counterparts of:
(i) this Agreement;
(ii) an agreement amending the EIML Facility.
(iii) each Share Mortgage which is not a MaxiLink Share
Mortgage;
(iv) each Charge;
(v) a Guarantee by each Guarantor;
(vi) a hedging or futures arrangement in relation to
shares in The First Australian Fund, Inc.; and
(vii) any letter from the Lender to a Guarantor and/or the
Borrower agreeing that a document or agreement is a
Finance Document or Transaction Document for the
purposes of a Charge or Share Mortgage.
(e) (MORTGAGED PROPERTY) Results of searches, enquiries and
requisitions in relation to the Mortgaged Property.
(f) (BANK'S LAWYERS' OPINION) An opinion of Allen Allen & Hemsley,
Australian legal advisers to the Lender.
(g) (JERSEY LAWYERS' OPINION) An opinion of Jersey counsel
satisfactory to the Lender in relation to the EIML Facility
and the Guarantee given by EIML in favour of the Lender.
(h) (DUE DILIGENCE) Evidence that due diligence has been carried
out on the Borrower, EAL, EHL, EIML and EUSA to the reasonable
satisfaction of the Lender.
17.2 CONDITIONS PRECEDENT TO MAXILINK SHARES BEING COUNTED FOR WEIGHTED
AVERAGE SECURITY VALUE
Shares in MaxiLink will only be treated as Marketable Securities which
are Mortgaged Property for the purpose of the definition of Weighted
Average Security Value if the Lender receives all of the following in
form and substance satisfactory to the Lender:
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LOAN AGREEMENT ALLEN ALLEN & HEMSLEY
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(a) (VERIFICATION CERTIFICATE) a certificate in relation to each
MaxiLink Mortgagor substantially in the form of annexure B
with the attachments referred to and dated not earlier than 7
days before the date of execution of the relevant MaxiLink
Share Mortgage;
(b) (MAXILINK SHARE MORTGAGE) duly executed counterparts of each
MaxiLink Share Mortgage;
(c) (REGISTRATION OF THE MAXILINK SHARE MORTGAGE) evidence that
each MaxiLink Share Mortgage has been provisionally registered
by the Australian Securities and Investments Commission;
(d) (STAMPING) evidence that each MaxiLink Share Mortgage has been
lodged at the Office of State Revenue with a cheque for the
appropriate stamp duty;
(e) (BANK'S LAWYERS' OPINION) an opinion of Allen Allen & Hemsley,
Australian legal advisers to the Lender; and
(f) (OTHER DOCUMENTS) any other documents the Lender reasonably
requires.
17.3 CONDITIONS PRECEDENT TO EACH LOAN
The obligations of the Lender to make available any Loan are subject to
the further conditions precedent that:
(a) (REPRESENTATIONS TRUE) the representations and warranties by
the Borrower in the Transaction Documents are true as at the
date of the relevant Drawdown Notice and the relevant Drawdown
Date as though they had been made at that date in respect of
the facts and circumstances then subsisting;
(b) (NO DEFAULT) no Event of Default or Potential Event of Default
subsists at the date of the relevant Drawdown Notice and the
relevant Drawdown Date or will result from the provision of
the Loan;
(c) (AUTHORISATION) all necessary Authorisations for the provision
of that Loan have been obtained; and
(d) (LOAN TO WEIGHTED AGGREGATE SECURITY VALUE RATIO) the Loan to
Weighted Aggregate Security Value Ratio is less than 100%.
18. REPRESENTATIONS AND WARRANTIES
- --------------------------------------------------------------------------------
18.1 REPRESENTATIONS AND WARRANTIES
The Borrower makes the following representations and warranties.
(a) (STATUS) Each Relevant Company is a corporation validly
existing under the laws of the place of its incorporation
specified in this Agreement.
(b) (POWER) Each Relevant Company has the power to enter into and
perform its obligations under the Material Documents to which
it is
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LOAN AGREEMENT ALLEN ALLEN & HEMSLEY
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expressed to be a party, to carry out the transactions
contemplated by those documents and to carry on its business
as now conducted or contemplated.
(c) (CORPORATE AUTHORISATIONS) Each Relevant Company has taken all
necessary corporate action to authorise the entry into and
performance of the Material Documents to which it is expressed
to be a party, and to carry out the transactions contemplated
by those documents.
(d) (DOCUMENTS BINDING) Each Transaction Document to which a
Relevant Company is expressed to be a party is its valid and
binding obligation enforceable in accordance with its terms,
subject to any necessary stamping and registration. Each
Material Document is valid and binding on the parties to it
and enforceable against each of them in accordance with its
terms.
(e) (TRANSACTIONS PERMITTED) The execution and performance by each
Relevant Company of the Material Documents to which it is
expressed to be a party and each transaction contemplated
under those documents did not and will not violate in any
respect a provision of:
(i) a law or treaty or a judgment, ruling, order or
decree of a Government Agency binding on it;
(ii) its constitution or other constituent documents; or
(iii) any other document or agreement which is binding on
it or its assets,
and, except as provided by the Transaction Documents, did not
and will not:
(iv) create or impose a Security Interest on any of its
assets; or
(v) allow a person to accelerate or cancel an obligation
with respect to Finance Debt, or constitute an event
of default, cancellation event, prepayment event or
similar event (whatever called) under an agreement
relating to Finance Debt, whether immediately or
after notice or lapse of time or both.
(f) (ACCOUNTS)
(i) Its most recent consolidated audited Accounts give a
true and fair view of the matters with which they
deal.
(ii) There has been no subsequent change in its and its
Subsidiaries' state of affairs which may have a
Material Adverse Effect.
(iii) Those Accounts comply with current accounting
practice except to the extent disclosed in them and
with all applicable laws.
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LOAN AGREEMENT ALLEN ALLEN & HEMSLEY
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(iv) All material Finance Debt and other material
contingent liabilities are disclosed in those
Accounts.
(v) No Relevant Company has executed a Guarantee for the
purpose of obtaining an order under part 2M.6 of the
Corporations Law or an equivalent provision or for
the purpose of complying with any such order.
(g) (NO LITIGATION) No litigation, arbitration, Tax claim, dispute
or administrative or other proceeding is current or pending
or, to a Relevant Company's knowledge, threatened, which may
have a Material Adverse Effect.
(h) (NO DEFAULT)
(i) No Relevant Company is and none of its Subsidiaries
is in default under a document or agreement
(including an Authorisation) binding on it or its
assets which relates to Finance Debt or is material.
(ii) Nothing has occurred which constitutes an event of
default, cancellation event, prepayment event or
similar event (whatever called) under those documents
or agreements, whether immediately or after notice or
lapse of time or both.
(i) (AUTHORISATIONS) Each Authorisation which is required in
relation to:
(i) the execution, delivery and performance by a Relevant
Company of the Material Documents to which it is
expressed to be a party and the transactions
contemplated by those documents;
(ii) the validity and enforceability of those documents;
and
(iii) its business as now conducted or contemplated and
which is material (including under Environmental
Law),
has been obtained or effected. Each is in full force and
effect. Each Relevant Company has complied with each of them.
It has paid all applicable fees for each of them.
(j) (NO MISREPRESENTATION) All information provided by a Relevant
Company to the Lender is true in all material respects at the
date of this Agreement or, if later, when provided. Neither
that information nor its conduct and the conduct of anyone on
its behalf in relation to the transactions contemplated by the
Transaction Documents, was or is misleading, by omission or
otherwise.
(k) (AGREEMENTS DISCLOSED) Each document or agreement which is
material to the Material Documents or which has the effect of
varying a Material Document has been disclosed to the Lender
in writing.
(l) (COPIES OF DOCUMENTS) All copies of documents (including its
latest audited Accounts and all Authorisations) given by a
Relevant Company or on its behalf to the Lender are true and
complete copies. Those documents are in full force and effect.
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LOAN AGREEMENT ALLEN ALLEN & HEMSLEY
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(m) (TITLE)
(i) It is the sole beneficial owner of all material
assets included in its latest audited Accounts free
of any other third party right or interest whatever
other than as permitted by clause 19.1(f) (NEGATIVE
PLEDGE).
(ii) None of its or its Subsidiaries' assets is subject to
a Security Interest which is not permitted by clause
19.1(f) (NEGATIVE PLEDGE).
(n) (LAW) Each Relevant Company and each of its Subsidiaries has
complied with all laws (including, without limitation, any
Environmental Law) binding on it where breach may have a
Material Adverse Effect.
(o) (TRUSTEE) No Relevant Company holds any assets as the trustee
of any trust other than a MaxiLink Mortgagor.
(p) (COMMERCIAL BENEFIT) The entry into and performance by a
Relevant Company of its obligations under the Material
Documents to which it is a party is for its commercial benefit
and is in its commercial interests.
(q) (WINDING UP) No action has been taken:
(i) in respect of a Relevant Company, or (except as
disclosed to the Lender) any of its Subsidiaries, for
winding up, dissolution, de-registration or
reorganisation; or
(ii) for the appointment to or over a Relevant Company, or
any of its Subsidiaries, or any of its assets, or any
assets of any of its Subsidiaries, of any liquidator,
provisional liquidator, official manager,
administrator, receiver, receiver and manager,
trustee, other controller (as defined in the
Corporations Law) or similar official.
18.2 RELIANCE ON REPRESENTATIONS AND WARRANTIES
The Borrower acknowledges that the Lender has entered the Transaction
Documents in reliance on the representations and warranties in this
clause.
19. UNDERTAKINGS
- --------------------------------------------------------------------------------
19.1 GENERAL UNDERTAKINGS
The Borrower undertakes to the Lender as follows. It also undertakes to
ensure that each Relevant Company other than a MaxiLink Mortgagor
complies with all of the following and that each MaxiLink Mortgagor
complies with paragraphs 19.1(a)(viii), 19.1(a)(ix) and 19.1(a)(x),
19.1(b), 19.1(d), 19.1(e) (but only in relation to shares in MaxiLink),
19.1(f) (but only in relation to shares in MaxiLink), 19.1(k) and
19.1(m). In each case these apply, except to the extent that the Lender
consents.
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(a) (CORPORATE REPORTING AND INFORMATION) It will provide to the
Lender:
(i) (ANNUAL ACCOUNTS) as soon as practicable (but within
120 days) after the close of each of its financial
years copies of its consolidated and unconsolidated
audited Accounts in respect of that financial year;
(ii) (SEMI-ANNUAL MANAGEMENT ACCOUNTS) as soon as
practicable (but within 90 days) after the first half
of each of its financial years copies of its
management accounts in respect of that half-year;
(iii) (RATIOS) at the time it provides the Accounts
referred to in sub-paragraphs (i) and (ii) a
certificate signed by 2 directors of the Borrower
which certifies whether in their opinion the Relevant
Companies have complied with the financial
undertakings in clause 19.13 which details:
(A) the figures and calculations supporting the
certificate; and
(B) any past breaches of those undertakings not
already notified and, if applicable, how
they were remedied;
(iv) (LOAN TO WEIGHTED AGGREGATE SECURITY VALUE RATIO) the
Borrower shall report to the Lender:
(A) the share price on the preceding Business
Day for The First Australian Fund, Inc.
shares and The First Commonwealth Fund, Inc.
shares which are the subject of any EUSA
Share Mortgage or EL US Share Mortgage:
(1) on the last Business Day of each
calendar month;
(2) at any other time immediately on
request by the Lender; and
(B) immediately if the Loan to Weighted
Aggregate Security Value Ratio exceeds 100%.
(v) (DIRECTORS CERTIFICATE) on the last Business Day of
each calendar month, a certificate of 2 directors of
the Borrower certifying:
(A) whether an Event of Default or Potential
Event of Default has occurred; and
(B) the Loan to Weighted Aggregate Security
Value Ratio on the preceding Business Day
(including details of the calculation);
(vi) (HEDGING DERIVATIVES) on the last Business Day of
each calendar month, a report on the open positions
of the hedging derivatives used by the Borrower;
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(vii) (DOCUMENTS ISSUED TO SHAREHOLDERS) promptly, all
documents provided by it to a stock exchange or
holders of Marketable Securities issued by it;
(viii) (LITIGATION) promptly, written particulars of any
litigation, arbitration, Tax claim, dispute or
administrative or other proceeding in relation to a
Relevant Company or its Subsidiaries involving a
claim exceeding A$1,000,000 or its equivalent other
than a claim for worker's compensation;
(ix) (GOVERNMENT AGENCY) promptly, any notice, order or
material correspondence from or with a Government
Agency relating to a Relevant Company's or any
Relevant Company's business or assets which may have
a Material Adverse Effect; and
(x) (OTHER INFORMATION) promptly, any other information
in relation to its or any Relevant Company's
financial condition or business which the Lender may
reasonably request.
(b) (ACCOUNTING PRINCIPLES) It will ensure that the Accounts
provided to the Lender under paragraph (a):
(i) comply with current accounting practice except to the
extent disclosed in them and with all applicable
laws; and
(ii) give a true and fair view of the matters with which
they deal.
(c) (AUTHORISATIONS) Each Relevant Company will ensure that each
Authorisation required for:
(i) the execution, delivery and performance by it of the
Transaction Documents to which it is expressed to be
a party and the transactions contemplated by those
documents;
(ii) the validity and enforceability of those documents;
and
(iii) the carrying on by it and its Subsidiaries of its and
their business as now conducted or contemplated
(including under Environmental Law),
is obtained and promptly renewed and maintained in full force
and effect. It will pay all applicable fees for them. It will
provide copies promptly to the Lender when they are obtained
or renewed.
(d) (NOTICE TO LENDER) Each Relevant Company will notify the
Lender as soon as it becomes aware of:
(i) any Event of Default or Potential Event of Default;
(ii) any proposal by a Government Agency to acquire
compulsorily the whole or a substantial part of its
or any of its Subsidiaries' assets or business;
(iii) any substantial dispute between it or any of its
Subsidiaries and a Government Agency; and
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(iv) any change in its Authorised Officers, giving
specimen signatures of any new Authorised Officer
appointed, and, where requested by the Lender,
evidence satisfactory to the Lender of the authority
of any Authorised Officer.
(e) (DISPOSAL OF ASSETS) No Relevant Company will sell or
otherwise dispose of, part with possession of, or create an
interest in all or a substantial part of its assets or agree
or attempt to do so (whether in one or more related or
unrelated transactions) except:
(i) as permitted by paragraph (f);
(ii) disposals of assets in exchange for other assets
comparable in value (other than a factoring on
recourse terms or a sale and Lease back or similar
transaction); and
(iii) disposals in the ordinary course of day-to-day
trading at arm's length.
Where a Subsidiary issues shares and its holding company does
not acquire all the shares, or (as the case may be) a ratable
portion of those shares according to its then shareholding,
the holding company will be taken to have disposed of the
shares it does not acquire.
(f) (NEGATIVE PLEDGE) No Relevant Company will create or allow to
exist a Security Interest over its assets other than:
(i) a lien arising by operation of law in the ordinary
course of day-to-day trading and not securing Finance
Debt where it duly pays the indebtedness secured by
that lien other than indebtedness contested in good
faith; and
(ii) a margin deposit under a foreign exchange or interest
rate hedging arrangement, entered into in good faith
on normal commercial terms at arm's length in the
ordinary course of business.
(g) (SECURITY DEPOSIT) No Relevant Company will deposit or lend
money on terms that it will not be repaid until its or another
person's obligations or indebtedness are performed or
discharged. It will not deposit money with or lend money to a
person (other than the Lender) to whom it is, or is likely to
become, actually or contingently indebted.
(h) (TITLE RETENTION) No Relevant Company will enter into an
agreement with respect to the acquisition of assets on title
retention terms except in the ordinary course of day-to-day
trading.
(i) (SALE AND LEASE BACK) No Relevant Company will sell or
otherwise dispose of any of its assets to a person where,
under the terms of that sale or disposal, or under a related
transaction, that asset is or may be Leased to a Relevant
Company or its Associate.
(j) (CORPORATE EXISTENCE) Each Relevant Company will do everything
necessary to maintain its corporate existence in good
standing. It will
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not transfer its jurisdiction of incorporation or enter any
merger or consolidation.
(k) (COMPLIANCE WITH LAW) Each Relevant Company will comply fully
with all laws binding on it.
(l) (PAY TAXES) Each Relevant Company will pay all Taxes payable
by it when due, but:
(i) it need not pay Taxes for which it has set aside
sufficient reserves and which are being contested in
good faith, except where failure to pay may have a
Material Adverse Effect; and
(ii) to the extent liable, it will pay those Taxes which
it is liable to pay on the final determination or
settlement of the contest.
(m) (COMPLIANCE AND ENFORCEMENT OF MATERIAL DOCUMENTS) Each
Relevant Company will:
(i) comply fully with its obligations under the Material
Documents;
(ii) enforce each Material Document to which it is a party
and exercise its rights, authorities and discretions
under those documents prudently and while an Event of
Default or Potential Event of Default subsists, in
accordance with the directions (if any) of the
Lender; and
(iii) use its best endeavours to keep the Material
Documents valid and enforceable.
(n) (VARIATION OF MATERIAL DOCUMENTS) No Relevant Company will:
(i) amend or vary, or consent to any amendment or
variation of;
(ii) avoid, release, surrender, terminate, rescind,
discharge (other than by performance) or accept the
repudiation of;
(iii) expressly or impliedly waive, or extend or grant any
time or indulgence in respect of, any provision of or
obligation under; or
(iv) do or permit anything which would enable or give
grounds to another party to do anything referred to
in sub-paragraphs (i), (ii) or (iii) in relation to,
a Material Document.
(o) (INSURANCE) Each Relevant Company will keep in force insurance
for its business and assets as would a prudent business of its
size conducting its business and having its assets.
(p) (COMMERCIAL DEALINGS)
(i) No Relevant Company will deal in any way with any
person except at arm's length in the ordinary course
of business for valuable commercial consideration.
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(ii) A Relevant Company may only deal with an Associate
which has not given a Charge or a Satisfactory
Guarantee if a person satisfactory to the Lender
verifies the adequacy of the consideration or
otherwise verifies compliance with sub-paragraph (i).
(q) (FINANCIAL ASSISTANCE) No Relevant Company will:
(i) advance money or make available financial
accommodation to or for the benefit of; or
(ii) give a Guarantee or Security Interest in connection
with an obligation or liability of,
a person, but it may:
(iii) deposit funds with a bank in the ordinary course of
its business unless it owes Finance Debt to that bank
and the bank is not the Lender;
(iv) allow its customers to acquire goods and services on
extended terms in the ordinary course of trading;
(v) enter into foreign exchange and interest rate hedging
arrangements in good faith on normal commercial terms
at arm's length in the ordinary course of business
and meet margin requirements under those
arrangements;
(vi) advance any money or make available financial
accommodation provided the total of all advances and
financial accommodation provided or made available by
all Relevant Companies other than MaxiLink Mortgagors
(excluding any referred to in subparagraph (vii) does
not at any time exceed A$5,000,000; and
(vii) advance money or make available financial
accommodation to an entity which has given a Charge
or a Satisfactory Guarantee.
(r) (DISTRIBUTIONS) No Relevant Company will pay or distribute any
money or other asset (including by management or other fee,
interest, dividend, return of capital, repayment or
redemption) to or for the benefit of a shareholder in that
capacity or to an Associate except:
(i) dividends in the ordinary course of business paid out
of trading profits (which excludes, for this purpose,
extraordinary items, sales of fixed assets and
revaluations) when no Event of Default subsists;
(ii) reasonable directors' fees and salaries and other
emoluments; and
(iii) payments under dealings permitted under paragraph
(p).
(s) (CHANGE OF BUSINESS) No Relevant Company will cease or
materially change its business. It will not take action
whether by acquisition or otherwise which alone or together
would materially
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alter the nature of the business of the Relevant Companies
taken as a whole.
(t) (FINANCE DEBT) No Relevant Company will incur any Finance Debt
except:
(i) under the Transaction Documents; or
(ii) to any person who has given a Satisfactory Guarantee.
(u) (SUBSIDIARIES)
(i) No Relevant Company will create or acquire a
Subsidiary unless at the time of becoming a
Subsidiary the Subsidiary gives a Satisfactory
Guarantee.
(ii) Each Relevant Company will ensure that each of its
Subsidiaries complies with paragraphs (e) to (l),
(o), (p), (q), (s) and (t) inclusive as if binding on
each of them and as if references to IT were to the
Subsidiary.
(v) (YEAR 2000 COMPLIANCE) In respect of Year 2000 compliance, it
will diligently implement a program designed to ensure that
its Systems are Year 2000 Compliant.
(w) (RATIFICATION) As holder of shares, units or any other direct
or indirect interest in any Relevant Company, it ratifies and
confirms the execution, delivery and performance by each
Relevant Company of each Transaction Document. It will be
taken to have ratified and confirmed the execution, delivery
and performance of each Satisfactory Guarantee to which any
entity in which it has such an interest is at any time
expressed to be party.
(x) (INTER COMPANY DEBT) It will not release or waive Finance Debt
owed by a Relevant Company or Associate other than any person
who has given a Charge or a Satisfactory Guarantee.
(y) (VALUATION) On reasonable request by the Lender a Relevant
Company will obtain and promptly provide to the Lender at its
cost a valuation of any asset nominated by the Lender
conducted by an independent valuer acceptable to the Lender.
That request may only be made once in a 12 month period.
(z) (SALE OPINION) On reasonable request by the Lender a Relevant
Company will provide to the Lender at its cost an opinion from
an independent merchant bank or stock broker acceptable to the
Lender on the prospects of selling all or part of any asset
nominated by the Lender.
19.2 LOAN TO WEIGHTED AGGREGATE SECURITY VALUE
If at any time the Loan to Weighted Aggregate Security Value Ratio
exceeds 105%, then the Lender may give written notice to the Borrower,
on receipt of which the Borrower must within 5 Business Days (or longer
period allowed by the Lender in its absolute discretion) following
receipt of the written notice permanently repay the facility and reduce
the Commitment by an
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amount necessary to ensure the Loan to Weighted Aggregate Security
Value Ratio equals or is less than 100%, unless by the due time for
that payment the Borrower has:
(a) deposited cash into a deposit account with the Lender in
Australian dollars at least equal to an amount, and provide
the Lender with all security or set off rights over the
account which the Lender may require; or
(b) provided further security of a nature and value satisfactory
to the Lender and its solicitors,
so that the Loan to Weighted Aggregate Security Value Ratio is equal to
or less than 100%.
19.3 OTHER FINANCIAL UNDERTAKINGS
The Borrower undertakes that at all times it will ensure the following.
(a) The total of dividends and amounts paid by way of share buy
back, return of capital or any other distribution to its
shareholders in any year will not exceed 50% of its annual net
operating cash flow after Interest and Tax or any other amount
approved by the Lender.
(b) The ratio of Total Liabilities to Total Tangible Assets is not
more than 0.7:1.
(c) The ratio of EBIT to Interest Expense in any 6 months is not
less than 2:1.
(d) Net Worth is at least A$35,000,000.
19.4 TERM OF UNDERTAKINGS
Each undertaking in this clause continues from the date of this
Agreement until the Secured Money is fully and finally paid.
20. EVENTS OF DEFAULT
- --------------------------------------------------------------------------------
20.1 EVENTS OF DEFAULT
Each of the following is an Event of Default (whether or not it is in
the control of any Relevant Company).
(a) (OBLIGATIONS UNDER TRANSACTION DOCUMENTS) A Relevant Company
fails:
(i) to pay an amount payable by it under a Transaction
Document when due;
(ii) to comply with its obligations in clause 19.2 or
19.3;
(iii) to comply with any of its other obligations under a
Transaction Document and, if in the opinion of the
Lender that failure can be remedied within 14 days,
does not remedy the failure within that period; or
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(iv) to satisfy within the time stipulated anything which
the Lender made a condition of its waiving compliance
with a condition precedent or undertaking in a
Transaction Document.
(b) (MISREPRESENTATION) A representation, warranty or statement by
or on behalf of a Relevant Company in a Transaction Document,
or in a document provided under or in connection with a
Transaction Document, is not true in a material respect or is
misleading when made or repeated.
(c) (CROSS DEFAULT)
(i) Finance Debt of a Relevant Company totalling at least
A$1,000,000 or its equivalent:
(A) is not paid when due (or within an
applicable grace period); or
(B) becomes due and payable or capable of being
declared due and payable before its stated
maturity or expiry; or
(ii) a facility or obligation granted or owed by a person
to a Relevant Company to provide financial
accommodation or to acquire or underwrite Finance
Debt totalling at least A$1,000,000 or its equivalent
is prematurely terminated; or
(iii) an "Event of Default" as defined in another
Transaction Document occurs.
For the purpose of this paragraph, if a person is required to
provide cash cover for Finance Debt as a result of an actual,
likely or threatened default or an event of default or
termination, cancellation, special prepayment or similar
event, whatever called, that Finance Debt will be taken to be
due and payable. Sub-paragraphs (i)(B) and (ii) will not apply
if a Relevant Company exercises an optional right of
prepayment or termination in the absence of actual, likely or
threatened default or an event of default or termination,
cancellation, special prepayment or similar event, whatever
called.
(d) (ADMINISTRATION, WINDING UP, ARRANGEMENTS, INSOLVENCY ETC)
(i) An administrator of a Relevant Company is appointed.
(ii) Except for the purpose of a solvent reconstruction or
amalgamation previously approved by the Lender:
(A) an application or an order is made,
proceedings are commenced, a resolution is
passed or proposed in a notice of meeting,
an application to a court or other steps are
taken for:
(1) the winding up, dissolution or
administration of a Relevant
Company; or
(2) a Relevant Company entering into an
arrangement, compromise or
composition with
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LOAN AGREEMENT ALLEN ALLEN & HEMSLEY
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or assignment for the benefit of
its creditors or a class of them,
(other than frivolous or vexatious
applications, proceedings, notices and
steps); or
(B) a Relevant Company ceases, suspends or
threatens to cease or suspend the conduct of
all or a substantial part of its business or
disposes of or threatens to dispose of a
substantial part of its assets.
(iii) A Relevant Company:
(A) is, or under legislation is presumed or
taken to be, insolvent (other than as the
result of a failure to pay a debt or claim
the subject of a good faith dispute); or
(B) stops or suspends or threatens to stop or
suspend payment of all or a class of its
debts.
(e) (ENFORCEMENT AGAINST ASSETS)
(i) A receiver, receiver and manager, administrative
receiver or similar officer is appointed to a
Relevant Company or any of its assets; or
(ii) a Security Interest becomes enforceable or is
enforced over, or a distress, attachment or other
execution is levied or enforced or applied for over,
all the assets and undertaking of a Relevant Company or any
asset with a value in excess of A$1,000,000 or its equivalent
or for a debt in excess of that figure.
(f) (REDUCTION OF CAPITAL) Without the prior consent of the
Lender, a Relevant Company:
(i) reduces its capital (including a purchase of its
shares but excluding a redemption of redeemable
shares);
(ii) passes a resolution to reduce its capital or to
authorise it to purchase its shares or a resolution
under chapter 2J of the Corporations Law or an
equivalent provision, or calls a meeting to consider
such a resolution; or
(iii) applies to a court to call any such meeting or to
sanction any such resolution or reduction.
(g) (INVESTIGATION) An investigation into all or part of the
affairs of any Relevant Company commences under companies
legislation in circumstances material to its financial
condition.
(h) (ANALOGOUS PROCESS) Anything analogous to anything referred to
in paragraphs (d) to (g) inclusive, or which has substantially
similar effect, occurs with respect to any Relevant Company
under any overseas law or any law which commences or is
amended after the date of this Agreement.
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LOAN AGREEMENT ALLEN ALLEN & HEMSLEY
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(i) (VITIATION OF DOCUMENTS)
(i) All or any part of a Material Document is terminated
or is or becomes void, illegal, invalid,
unenforceable or of limited force and effect;
(ii) a party becomes entitled to terminate, rescind or
avoid all or part of a Material Document; or
(iii) a party other than the Lender alleges or claims that
an event described in sub-paragraph (i) has occurred
or that it is entitled as described in sub-paragraph
(ii).
(j) (AMENDMENT OF CONSTITUTION) The constitution or other
constituent documents of any Relevant Company are amended in a
material respect without the prior consent of the Lender
(which will not be withheld unreasonably).
(k) (REVOCATION OF AUTHORISATION) An Authorisation which is
material to the performance by any Relevant Company of a
Material Document, or to the validity and enforceability of a
Material Document or to the security of the Lender, is
repealed, revoked or terminated or expires, or is modified or
amended or conditions are attached to it in a manner
unacceptable to the Lender, and is not replaced by another
Authorisation acceptable to the Lender.
(l) (MATERIAL ADVERSE CHANGE) Any other event or series of events,
whether related or not, occurs (including a material adverse
change in the business, assets or financial condition of any
Relevant Company or the value of the Mortgaged Property),
which in the reasonable opinion of the Lender may have a
Material Adverse Effect.
(m) (CONTROL OF BORROWER AND GUARANTORS) Without the prior consent
of the Lender:
(i) any Relevant Company other than a MaxiLink Mortgagor
becomes a Subsidiary of another person; or
(ii) in the opinion of the Lender there is a material
change in the ownership, management or control of any
Relevant Company.
(n) (COMPULSORY ACQUISITION)
(i) All or any substantial part of the Mortgaged Property
of a Relevant Company is compulsorily acquired by or
by order of a Government Agency or under law;
(ii) a Government Agency orders the sale, vesting or
divesting of all or any substantial part of the
Mortgaged Property of a Relevant Company; or
(iii) a Government Agency takes a step for the purpose of
any of the above or proposes or threatens to do any
of the above.
(o) (GOVERNMENTAL INTERFERENCE) A law or anything done by a
Government Agency wholly or partially to a material extent
renders
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LOAN AGREEMENT ALLEN ALLEN & HEMSLEY
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illegal, prevents or restricts the performance or
effectiveness of a Material Document or otherwise has a
Material Adverse Effect.
20.2 CONSEQUENCES
In addition to any other rights provided by law or any Transaction
Document, at any time after an Event of Default (whether or not it is
continuing) the Lender may do all or any of the following:
(a) by notice to the Borrower declare all sums actually or
contingently owing under this Agreement immediately due and
payable, and the Borrower shall immediately pay the Principal
Outstanding together with accrued interest and fees and all
other sums;
(b) by notice to the Borrower cancel the Commitment;
(c) at the cost of the Borrower, appoint a firm of independent
accountants or other experts to review and report to the
Lender on the affairs, financial condition and business of any
Relevant Company.
The Borrower will ensure that each Relevant Company shall do
everything in its power to ensure the review and report can be
carried out promptly, completely and accurately. Without
limitation, it shall co-operate fully with the review and
ensure that the accountants and experts are given access to
all premises and records of each Relevant Company and are
given all information concerning any Relevant Company which
they require from time to time. It shall ensure that all
officers and employees of each Relevant Company do the same.
21. EXPENSES
- --------------------------------------------------------------------------------
The Borrower shall reimburse the Lender, each Receiver and each
Attorney for its expenses in relation to:
(a) the preparation, execution and completion of the Transaction
Documents and any subsequent consent, agreement, approval,
waiver or amendment; and
(b) (i) any actual or contemplated enforcement of the
Transaction Documents, or the actual or contemplated
exercise, preservation or consideration of any Powers
under the Transaction Documents or in relation to the
Mortgaged Property; and
(ii) any enquiry by a Government Agency concerning any
Relevant Company or the Mortgaged Property or a
transaction or activity the subject of the
Transaction Documents or in connection with which,
financial accommodation or funds raised under a
Transaction Document are used or provided.
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LOAN AGREEMENT ALLEN ALLEN & HEMSLEY
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This includes legal costs and expenses (including in-house lawyers
charged at their usual rates) on a full indemnity basis, expenses
incurred in retaining consultants to evaluate matters of material
concern to the Lender, any Receiver or Attorney, and administrative
costs including time of its executives (whose time and costs are to be
charged at reasonable rates).
22. STAMP DUTIES
- --------------------------------------------------------------------------------
(a) The Borrower shall pay or reimburse the Lender for all stamp,
transaction, registration and similar Taxes (including fines
and penalties) on or in relation to the execution, delivery,
performance or enforcement of any Transaction Document or any
payment, receipt or other transaction contemplated by any
Transaction Document.
(b) Those Taxes include financial institutions duty, debits tax or
other Taxes payable by return and Taxes passed on to the
Lender by a bank or financial institution.
(c) The Borrower shall indemnify the Lender against any liability
resulting from delay or omission to pay those Taxes except to
the extent the liability results from failure by the Lender to
pay any Tax after having been put in funds (with all necessary
documents) to do so by the Borrower.
23. GST
- --------------------------------------------------------------------------------
(a) All payments to be made by a Relevant Company under or in
connection with any Transaction Document have been calculated
without regard to GST.
(b) If all or part of any such payment is the consideration for a
taxable supply for GST purposes then, when a Relevant Company
makes the payment:
(i) it must pay to the Lender an additional amount equal
to that payment (or part) multiplied by the
appropriate rate of GST (currently 10%); and
(ii) the Lender will promptly provide to the Relevant
Company a tax invoice complying with the relevant GST
legislation.
(c) Where under any Transaction Document a Relevant Company is
required to reimburse or indemnify for an amount, it will pay
the relevant amount (including any sum in respect of GST) less
any GST input tax credit the relevant Lender determines that
it is entitled to claim in respect of that amount.
24. SET-OFF
- --------------------------------------------------------------------------------
(a) If an Event of Default or Potential Event of Default subsists
the Lender may apply any credit balance in any currency
(whether or not
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LOAN AGREEMENT ALLEN ALLEN & HEMSLEY
- --------------------------------------------------------------------------------
matured) in any account of the Borrower with any branch of the
Lender towards satisfaction of any sum then due and payable by
the Borrower to the Lender under or in relation to any
Transaction Document. The Lender need not make the
application.
(b) The Lender may exchange currencies to make that application.
25. WAIVERS, REMEDIES CUMULATIVE
- --------------------------------------------------------------------------------
(a) No failure to exercise and no delay in exercising any right,
power or remedy under any Transaction Document operates as a
waiver. Nor does any single or partial exercise of any right,
power or remedy preclude any other or further exercise of that
or any other right, power or remedy.
(b) The rights, powers and remedies provided to the Lender in the
Transaction Documents are in addition to, and do not exclude
or limit, any right, power or remedy provided by law.
26. SEVERABILITY OF PROVISIONS
- --------------------------------------------------------------------------------
Any provision of any Transaction Document which is prohibited or
unenforceable in any jurisdiction is ineffective as to that
jurisdiction to the extent of the prohibition or unenforceability. That
does not invalidate the remaining provisions of that Transaction
Document nor affect the validity or enforceability of that provision in
any other jurisdiction.
27. SURVIVAL OF REPRESENTATIONS
- --------------------------------------------------------------------------------
All representations and warranties in any Transaction Document survive
the execution and delivery of the Transaction Documents and the
provision of advances and accommodation.
28. INDEMNITY AND REIMBURSEMENT OBLIGATIONS
- --------------------------------------------------------------------------------
Unless otherwise stated, each indemnity, reimbursement or similar
obligation in a Transaction Document:
(a) is of a continuing nature and is independent of each other
obligation;
(b) is payable on demand; and
(c) survives termination or discharge of the Transaction Document.
29. MORATORIUM LEGISLATION
- --------------------------------------------------------------------------------
To the full extent permitted by law all legislation which at any time
directly or indirectly:
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LOAN AGREEMENT ALLEN ALLEN & HEMSLEY
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(a) lessens, varies or affects in favour of the Borrower any
obligation under a Transaction Document; or
(b) delays, prevents or prejudicially affects the exercise by the
Lender of any right, power or remedy conferred by a
Transaction Document,
is excluded from the Transaction Documents.
30. CONSENTS AND OPINIONS
- --------------------------------------------------------------------------------
Except where expressly stated the Lender may give or withhold, or give
conditionally, approvals and consents, may be satisfied or unsatisfied,
may form opinions, and may exercise its rights, powers and remedies, at
its absolute discretion.
31. ASSIGNMENTS
- --------------------------------------------------------------------------------
31.1 ASSIGNMENT BY BORROWER
The Borrower may only assign or transfer any of its rights or
obligations under this Agreement with the prior written consent of the
Lender, such consent not to be withheld unreasonably, if the assignee
or transferee is a Relevant Company other than a MaxiLink Mortgagor.
31.2 ASSIGNMENT BY LENDER
The Lender may assign or transfer all or any of its rights or
obligations under the Transaction Documents at any time if:
(a) any necessary prior Authorisation is obtained;
(b) the transferee or assignee is a Related Entity of the Lender
or the Borrower has given its prior consent, which consent:
(i) must not be withheld unreasonably; and
(ii) will be taken to have been given if no response is
received within 15 days of the request for consent;
and
(c) in the case of a transfer of obligations, the transfer is
effected by a novation in form and substance reasonably
satisfactory to the Borrower.
31.3 DISCLOSURE
The Lender may disclose to a proposed assignee, transferee or
sub-participant information which relates to a Relevant Company or was
furnished in connection with the Transaction Documents if it first
obtains the consent of the Borrower (who shall not unreasonably
withhold that consent).
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LOAN AGREEMENT ALLEN ALLEN & HEMSLEY
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31.4 CHANGE OF LENDING OFFICE
The Lender may change its Lending Office if it first notifies and
consults with the Borrower.
31.5 NO INCREASED COSTS
Despite anything to the contrary in this Agreement, if the Lender
assigns its rights under this Agreement or changes its Lending Office,
the Borrower will not be required to pay any net increase in the total
amount of costs, Taxes, fees or charges which is a direct result of the
assignment or change and of which the Lender or its assignee was aware
or ought reasonably to have been aware on the date of the assignment or
change.
32. NOTICES
- --------------------------------------------------------------------------------
All notices, requests, demands, consents, approvals, agreements or
other communications to or by a party to this Agreement:
(a) must be in writing signed by an Authorised Officer of the
sender; and
(b) will be taken to be given or made when delivered, received or
left at the address or fax number of the recipient shown in
this Agreement or to any other address or fax number which it
may have notified the sender but, if delivery or receipt is on
a day on which business is not generally carried on in the
place to which the communication is sent or is later than 4pm
(local time), it will be taken to have been given or made at
the commencement of business on the next day on which business
is generally carried on in that place.
33. AUTHORISED OFFICERS
- --------------------------------------------------------------------------------
The Borrower irrevocably authorises the Lender to rely on a certificate
by a person purporting to be its director or secretary as to the
identity and signatures of its Authorised Officers. The Borrower
warrants that those persons have been authorised to give notices and
communications under or relating to the Transaction Documents.
34. GOVERNING LAW AND JURISDICTION
- --------------------------------------------------------------------------------
This Agreement is governed by the laws of New South Wales. The Borrower
submits to the non-exclusive jurisdiction of courts exercising
jurisdiction there.
35. COUNTERPARTS
- --------------------------------------------------------------------------------
This Agreement may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
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LOAN AGREEMENT ALLEN ALLEN & HEMSLEY
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36. ACKNOWLEDGEMENT BY BORROWER
- --------------------------------------------------------------------------------
The Borrower confirms that:
(a) it has not entered into any Transaction Document in reliance
on, or as a result of, any statement or conduct of any kind of
or on behalf of the Lender or any Related Entity of the Lender
(including any advice, warranty, representation or
undertaking); and
(b) neither the Lender nor any Related Entity of the Lender is
obliged to do anything (including disclose anything or give
advice),
except as expressly set out in the Transaction Documents.
EXECUTED in Sydney.
Each attorney executing this Agreement states that he has no notice of
revocation or suspension of his power of attorney.
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LOAN AGREEMENT ALLEN ALLEN & HEMSLEY
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THE COMMON SEAL of )
HSBC BANK AUSTRALIA LIMITED was affixed hereto )
by the authority of the Board of Directors in )
the presence of: )
)
/s/ Steven McKeane /s/ Philip Charles Lidstone Hulberton
- ------------------------------ -------------------------------------
Signature Signature
Steven McKeane Philip Charles Lidstone Hulberton
- ------------------------------ -------------------------------------
Print name Print name
Company Secretary Director
- ------------------------------ -------------------------------------
Office held Office held
EQUITILINK LIMITED )
/s/ Melissa Brown /s/ Barry Sechos
- ------------------------------ -------------------------------------
Signature Signature
Melissa Brown Barry Sechos
- ------------------------------ -------------------------------------
Print name Print name
Company Secretary Director
- ------------------------------ -------------------------------------
Office held Office held
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LOAN AGREEMENT ALLEN ALLEN & HEMSLEY
- --------------------------------------------------------------------------------
ANNEXURE A
DRAWDOWN NOTICE
- --------------------------------------------------------------------------------
[*] - DRAWDOWN NOTICE NO. [*]
This is an irrevocable notice under clause [*] of the Facility Agreement dated
[*] (the FACILITY AGREEMENT).
(1) We wish to draw on [*] (the DRAWDOWN DATE).
NOTE: DATE IS TO BE A BUSINESS DAY.
(2) The total principal amount to be drawn is [*].
NOTE: AMOUNT TO COMPLY WITH THE LIMITS IN CLAUSE 2.
(3) Particulars of each Loan are as follows:
PRINCIPAL AMOUNT FUNDING PERIOD
[*] [*]
[*] [*]
[*] [*]
NOTE: AMOUNTS TO COMPLY WITH CLAUSE [*]. LENGTH OF FUNDING PERIOD TO
COMPLY WITH CLAUSE [*].
(4) Please remit the proceeds to account number [*] at [*].
(5) We represent and warrant as follows.
(a) [Except as disclosed in paragraph (c)] the representations and
warranties in the Facility Agreement are true as though they
had been made at the date of this Drawdown Notice and the
Drawdown Date specified above in respect of the facts and
circumstances then subsisting.
(b) [Except as disclosed in paragraph (c)] no Event of Default [or
Potential Event of Default] subsists or will result from the
drawing.
[(c) Details of the exceptions to paragraphs (a) and (b) are as
follows: [*], and we [have taken/propose] the following
remedial action [*].]
NOTE: INCLUSION OF A STATEMENT UNDER PARAGRAPH (C) WILL NOT PREJUDICE
THE CONDITIONS PRECEDENT IN THE AGREEMENT.
Definitions in the Facility Agreement apply in this Drawdown Notice.
On behalf of EQUITILINK LIMITED
By: [Authorised Officer]
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LOAN AGREEMENT ALLEN ALLEN & HEMSLEY
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DATED [*]
ANNEXURE B
VERIFICATION CERTIFICATE
- --------------------------------------------------------------------------------
TO: HSBC Bank Australia Limited as Lender under the Facility Agreement (as
defined below) and to its substitutes and assigns.
A$ 35,000,000 FACILITY FOR EQUITILINK LIMITED
I am a [secretary/director] of [*] (the COMPANY).
I refer to the Loan Agreement dated [*] (the FACILITY AGREEMENT) between [*].
Definitions in the Facility Agreement apply in this Certificate.
Attached are complete copies of the following.
(a) A registered power of attorney under which the Company executed any
Transaction Document to which it is expressed to be a party relating to
the above facility.
(b) Extracts of minutes of a meeting of directors of the Company
authorising the execution[, explaining why the directors believe it is
in the best interests of the Company NOTE TO BE INCLUDED FOR THE
GUARANTORS AND MORTGAGORS UNDER ANY SHARE MORTGAGE].
(c) A certificate of incorporation and constituent documents for the
Company, if they are not already held by the Lender.
(d) Specimen signatures of all those authorised to give drawdown and other
notices for the Company or to sign the Transaction Documents.
If any of the documents in paragraph (c) are already held by the Lender, I
confirm [they are complete and up-to-date] [the attached amendments are all
subsequent amendments to them].
The Company is solvent. It is not prevented by Chapter 2E or any other provision
of the Corporations Law from entering into and performing any of those
agreements or securities.
- ---------------------------------------------
Secretary/Director
Page 42
<PAGE> 1
JOINT FILING AGREEMENT
The undersigned hereby agree, pursuant to Rule 13d-1(k) under the
Securities Exchange Act of 1934, as amended, that the Schedule 13D to which this
agreement is attached as an exhibit is filed on behalf of each of them.
This agreement may be executed in one or more counterparts, which
together shall consitute a single agreement.
Dated: January 21, 2000
LAURENCE FREEDMAN
/s/ Laurence Freedman
---------------------------
BRIAN SHERMAN
/s/ Brian Sherman
---------------------------
EQUITILINK LIMITED
By: /s/ Barry Sechos
---------------------------
Name: Barry Sechos
Title: Director
EQUITILINK U.S.A., INC.
By: /s/ Richard P. Strickler
---------------------------
Name: Richard P. Strickler
Title: Managing Director
20738283.2
