EXHIBIT 10.1 

 


 


Conformed Copy







Second variation deed


ANZ Multicurrency Facility Agreement


3⁄4


Australia and New Zealand Banking Group Limited and ANZ Bank New Zealand Limited


(each a Financier)







Royal Wolf Trading Australia Pty Ltd and

 Royalwolf Trading New Zealand Limited


(each an Initial Borrower)







Each party listed as an obligor in Schedule 1


(each a Guarantor)

































































































Level 40 Governor Macquarie Tower 1 Farrer Place                                                       Minter Ellison


Sydney NSW 2000 Australia DX 117 Sydney


T +61 2 9921 8888 F +61 2 9921 8123


minterellison.com 






















Second variation deed


ANZ Multicurrency Facility Agreement


	
~*~





Details


Agreed terms



	1.	
Defined terms & interpretation








	1.1	
Varied Facility Agreement defined terms








	1.2	
Defined terms








	1.3	
Interpretation








	2.	
Variation








	2.1	
Agreement








	2.2	
When effective








	2.3	
Notice of Effective Date








	2.4	
Waiver








	3.	
Representations and acknowledgments








	3.1	
Representations and warranties








	3.2	
Consent








	3.3	
Acknowledgment and agreement








	3.4	
Finance Document and Secured Finance Document








	3.5	
Entire agreement








	4.	
General provisions








	4.1	
Consideration








	4.2	
Enforceability








	4.3	
Further action








	4.4	
Severability








	4.5	
Governing law and jurisdiction








	4.6	
Counterparts








	4.7	
Attorneys







Schedule 1 – Guarantors


Signing pages







	 

















Details


Date  15 December 2016


Parties







Name Australia and New Zealand Banking Group Limited


ABN 11 005 357 522


Short form name Financier


Notice details Address: Level 17, 242 Pitt Street, Sydney, NSW 2000 Australia


Facsimile: +61 2 8937 7140


Email: emily.tonkin@anz.com


Attention: Senior Relationship Credit Manager







Name ANZ Bank New Zealand Limited


Company number 35976


Short form name Financier


Notice details Address: Level 1, 8 Business Parade South, Highbrook, New Zealand 2161


Facsimile: +64 9 273 1051


Email: Jeremy.harwood@anz.com


Attention: Jeremy Harwood, Relationship Manager


Name Royal Wolf Trading Australia Pty Ltd


ACN 069 244 417


ABN 38 069 244 417


Short form name Initial Borrower


Notice details Address: Level 2, 22-28 Edgeworth David Avenue, Hornsby NSW 2077 Australia


Facsimile: +61 2 9423 6923


Attention: Chief Financial Officer












Name Royalwolf Trading New Zealand Limited


Company number 1062072


Short form name Initial Borrower


Notice details Address: Level 2, 22-28 Edgeworth David Avenue, Hornsby NSW 2077 Australia


Facsimile: +61 2 9423 6923


Attention: Chief Financial Officer






Name Each entity specified in Schedule 1

Short form name Each a Guarantor and an Obligor


Notice details As specified in Schedule 1
















Background


This document varies and restates the Facility Agreement at the request of the Initial Borrowers and the other Obligors.


Agreed terms



	
1.

	
Defined terms & interpretation








	
1.1

	
Varied Facility Agreement defined terms







Unless the context otherwise requires or the relevant term is defined in this document, terms defined in (or incorporated by reference into) Annexure A have the same meaning in this document.



	
1.2

	
Defined terms







In this document:



	


	
Effective Date has the meaning given in clause 2.2.








	


	
Facility Agreement means the agreement titled 'ANZ Multicurrency Facility Agreement' dated 8 May 2014 between the Financiers, the Initial Borrowers and the Guarantors, as amended by the First Variation Deed.








	


	
First Variation Deed means the agreement titled 'Amendment Deed – ANZ Transactional Facilities Agreement' dated 30 June 2015 between the Financiers, the Initial Borrowers and the Guarantors.








	


	
Variation has the meaning given in clause 2.1.








	


	
Varied Facility Agreement means the Facility Agreement as varied by the Variation.








	
1.3

	
Interpretation







The following clauses of the Varied Facility Agreement apply to this document as if set out in this document in full:



	
(a)

	
clauses 1.3(a) to 1.3(f);








	
(b)

	
clauses 1.3(t) to 1.3(v);








	
(c)

	
clauses 1.3(y) to 1.3(bb);








	
(d)

	
clause 2; and








	
(e)

	
clause 3.








	
2.

	
Variation








	
2.1

	
Agreement







On and from the Effective Date:



	
(a)

	
the Facility Agreement is varied and restated as set out in Annexure A (Variation); and








	
(b)

	
each party agrees to be bound by the Varied Facility Agreement.








	
2.2

	
When effective







Clause 2.1 takes effect on the date (Effective Date) when the Financiers notify the Borrowers that the Financiers have received the following conditions precedent items in form and substance acceptable to the Financiers:



	
(a)

	
(executed counterparts) two original counterparts of this document duly executed by each Obligor, on which any applicable stamp duty or other taxes of a similar nature have been paid;








	
(b)

	
(verification certificates)








	
(i)

	
a verification certificate for each Obligor incorporated in Australia in the form set out in Schedule 4 of Annexure A; and








	
(ii)

	
a director's certificate for each Obligor incorporated in New Zealand in the form set out in Schedule 5 of Annexure A,







in each case properly completed and with all required attachments (or certifying that the relevant documents have not changed since last provided as an attachment to a verification certificate accepted by the Financiers for the Facility), duly signed by two directors and dated no earlier than 2 Business Days before the date of this document;



	
(c)

	
(Authorised Officer Certificate) if there has been a change to the Authorised Officers of a Borrower, an Authorised Officer Certificate for that Borrower properly completed and with all required attachments, duly signed by two directors (or in the case of an Australian Borrower only, a director and company secretary) and dated no earlier than 2 Business Days before the Effective Date;








	
(d)

	
(Know your Customer) completion of each Financier's KYC Checks in respect of each Obligor and their respective Authorised Officers, and any other person for whom the Financier reasonably believes that an applicable customer identification procedure must be conducted in connection with the Finance Documents and the transactions contemplated by this document;








	
(e)

	
(power of attorney) if this document is signed by an Obligor under a power of attorney, a certified copy of the power of attorney executed under common seal or by two directors or, in the case of an Australian Obligor only, a director and a company secretary of the relevant Australian Obligor.








	
(f)

	
(legal opinions) legal opinions acceptable to, and addressed to, the Financiers from MinterEllison, counsel to the Financiers; and








	
(g)

	
(costs and expenses) evidence that all fees, costs and expenses due and payable to the Financiers under the Facility Agreement or other Finance Documents have been paid (including the Facility A Extension Fee).








	
2.3

	
Notice of Effective Date







The Financiers shall promptly notify the Borrowers when the Effective Date has occurred.



	
2.4

	
Waiver







Receipt of each condition precedent item in this clause is for the sole benefit of the Financiers, and may only be waived by Notice to the Borrowers from the Financiers.



	
3.

	
Representations and acknowledgments








	
3.1

	
Representations and warranties







Each Obligor makes its representations and warranties contained in each Finance Document to which it is a party (including where applicable, as if those representations and warranties related to this document) for the Financiers' benefit with reference to facts and circumstances subsisting as at the date of this document.



	
3.2

	
Consent







Each Obligor consents to the Variation.



	
3.3

	
Acknowledgment and agreement







Each Obligor acknowledges and agrees that:



	
(a)

	
each Guarantee and each Security provided by it continues in full force and effect to guarantee and secure all of its liabilities and obligations under the Finance Documents (including liabilities and obligations as varied by the Variation), and any reference in any such Guarantee or Security (or in any Finance Document or Secured Finance Document) to the original Facility Agreement is amended to refer to the Varied Facility Agreement;








	
(b)

	
its respective liabilities and obligations under each Finance Document to which it is a party are not released, reduced or diminished as a result of the Variation;








	
(c)

	
nothing in this document prejudices or otherwise adversely affects any Power of the Financiers or any obligation or liability of an Obligor to the Financiers, with respect to anything done or effected or otherwise arising before the date of this document;








	
(d)

	
the Financiers are relying on this document (and on the representations and warranties in clause 3.1) in continuing to provide financial accommodation to the Borrowers and in agreeing to the Variation;








	
(e)

	
its representations and warranties in clause 3.1 survive execution and delivery of this document; and








	
(f)

	
this document and the Variation are made in accordance with, and are deemed to satisfy, all requirements of the Finance Documents and Secured Finance Documents.








	
3.4

	
Finance Document and Secured Finance Document







This document is a 'Finance Document' and a 'Secured Finance Document' for all purposes under each other Finance Document and each other 'Secured Finance Document'.



	
3.5

	
Entire agreement







This document and the Finance Documents:



	
(a)

	
contain all the terms on which financial accommodation under the Varied Facility Agreement is or will be provided and remains or will remain outstanding; and








	
(b)

	
supersede all prior communications between the parties about the subject matter of the Facility Agreement and the Variation.








	
4.

	
General provisions








	
4.1

	
Consideration







Each party acknowledges to each other party that it enters into this document and incurs obligations and gives rights under it for valuable consideration provided by each other party.



	
4.2

	
Enforceability







This document is enforceable against each party signing it even if:



	
(a)

	
one or more persons named as an Obligor does not execute this document; or








	
(b)

	
this document is not enforceable against another person named as an Obligor for any reason.








	
4.3

	
Further action







Each Obligor must do all things necessary or desirable to give full effect to the Variation and this document.



	
4.4

	
Severability







A provision of this document that is illegal, invalid or unenforceable in a jurisdiction is ineffective in that jurisdiction to the extent of the illegality, invalidity or unenforceability.  This does not affect the validity or enforceability of that provision in any other jurisdiction, nor the remainder of this document in any jurisdiction.



	
4.5

	
Governing law and jurisdiction







This document is governed by the laws of New South Wales.  Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of that place (and any court of appeal) and waives any right to object to an action being brought in those courts, including on the basis of an inconvenient forum or those courts not having jurisdiction.



	
4.6

	
Counterparts







This document may be executed in any number of counterparts.  Each counterpart constitutes an original of this document, all of which together constitute one instrument.  A party who has executed a counterpart of this document may exchange it with another party by faxing, or by emailing a pdf (portable document format) copy of, the executed counterpart to that other party, and if requested by that other party, will promptly deliver the original by hand or post.  Failure to make that delivery will not affect the validity of this document.



	
4.7

	
Attorneys







Each of the attorneys executing this document states that the attorney has no notice of the revocation of the power of attorney appointing that attorney.











Schedule 1 – Guarantors


Name Royal Wolf Holdings Limited


ACN 121 226 793


ABN 91 121 226 793


Notice details Address: Level 2, 22 – 28 Edgeworth David Avenue,


Hornsby NSW 2077


Facsimile: +61 2 9423 6923


Email: gbaker@royalwolf.com.au


Attention: Chief Financial Officer







Name Royal Wolf Trading Australia Pty Limited


ACN 069 244 417


ABN 38 069 244 417


Notice details Address: Level 2, 22 – 28 Edgeworth David Avenue,


Hornsby NSW 2077


Facsimile: +61 2 9423 6923


Email: gbaker@royalwolf.com.au


Attention: Chief Financial Officer







Name Kookaburra Containers Pty Ltd


ACN 079 735 050


ABN 22 079 735 050


Notice details Address: Level 2, 22 – 28 Edgeworth David Avenue,


Hornsby NSW 2077


Facsimile: +61 2 9423 6923


Email: gbaker@royalwolf.com.au


Attention: Chief Financial Officer







Name Royalwolf Trading New Zealand Limited


Company number 1062072


Notice details Address: Level 2, 22 – 28 Edgeworth David Avenue,


Hornsby NSW 2077


Facsimile: +61 2 9423 6923


Email: gbaker@royalwolf.com.au


Attention: Chief Financial Officer







Name Royalwolf NZ Acquisition Co. Limited

Company number 2115393

Notice details Address: Level 2, 22 – 28 Edgeworth David Avenue,

 Hornsby NSW 2077

Facsimile: +61 2 9423 6923

Email: gbaker@royalwolf.com.au

 Attention: Chief Financial Officer
















Signing pages


EXECUTED as a deed.


Each attorney signing this document under a power of attorney certifies, by the attorney's signature, that the attorney has no notice of the revocation of the power of attorney.


Initial Borrowers







Signed, sealed and delivered by Royalwolf Trading New Zealand Limited (company number 1062072) in the presence of:












/s/ Simin Yang /s/ Gregory Baker


Signature of witness Signature of director







Simin Yang Gregory Baker


Name Name

















Signature of witness Signature of director







/s/ Alex Wingrove /s/ Neil Littlewood







Name Alexandra Wingrove Name Neil Littlewood





















Initial Guarantors







Executed by Royal Wolf Holdings Limited in accordance with section 127 of the Corporations Act by its authorised officers:












/s/ Neil Littlewood /s/ Gregory Baker


Signature of director Signature of director/secretary







Neil Littlewood Gregory Baker







Name Name







Executed by Royal Wolf Trading Australia Pty Limited in accordance with section 127 of the Corporations Act by its authorised officers:












/s/ Neil Littlewood  /s/ Gregory Baker


Signature of director Signature of director/secretary







Neil Littlewood  Gregory Baker


Name Name







Signed, sealed and delivered by Royalwolf Trading New Zealand Limited (company number 1062072) in the presence of:












/s/ Simin Yang /s/ Gregory Baker


Signature of witness Signature of director








	Simin Yang	
Gregory Baker







Name Name







/s/ Alex Wingrove /s/ Neil Littlewood


Signature of witness Signature of director







Alexandra Wingrove Neil Littlewood


Name Name







Executed by Kookaburra Containers Pty Limited in accordance with section 127 of the Corporations Act by its authorised officers:












/s/ Neil Littlewood /s/ Gregory Baker


Signature of director Signature of director/secretary







Neil Littlewood Gregory Baker


Name Name







Signed, sealed and delivered by Royalwolf NZ Acquisition Co. Limited (company number 2115393) in the presence of:


/s/ Simin Yang /s/ Gregory Baker


Signature of witness Signature of director







Simin Yang Gregory Baker


Name Name







/s/ Alex Wingrove /s/ Neil Littlewood


Signature of witness Signature of director







Alexandra Wingrove Neil Littlewood


Name Name











Financiers







Executed for and on behalf of Australia and New Zealand Banking Group Limited ABN 11 005 357 522 under Power of Attorney dated 26 July 2012 and registered in NSW folio Book 4636 # 566


by Alison Clark who certifies that he/she is a Director and that he/she has not received notice of revocation of that Power in the presence of







Johana Hendry 


Name of witness







/s/ Johanna Hendry /s/ Alison Clark


Signature of witness Signature of attorney












Sydney

 City/town of residence of witness







Lawyer


Occupation of witness





















Executed for and on behalf of  ANZ Bank New Zealand Limited under power of attorney dated 15 December 2016 in the presence of


Jeremy Harwood

 Name of witness


/s/ Jeremy Harwood /s/ Anne-Marie Avis

Signature of witness Signature of attorney


Auckland, New Zealand

 City/town of residence of witness


Banker

 Occupation of witness











'Annexure A'