Exhibit 10.1


 


	 	Dated	2018
	 	 	 
	 	DEED
                                         OF AMENDMENT AND

                                                                              RESTATEMENT
                                         AND ACCESSION

                                                                              (relating
                                         to the Facility Agreement

                                                                              originally
                                         dated 27 June 2016

                                                                              (as
                                         amended from time to time))
	 
	 	 	 
	 	Initial
    Borrower	 
	 	BENDON
    LIMITED	 
	 	 	 
	 	Initial
    Guarantors	 
	 	THE
    PARTIES LISTED IN SCHEDULE 1	 
	 	 	 
	 	Acceding
    Guarantor and Acceding Security Provider	 
	 	BENDON
    GROUP HOLDINGS LIMITED	 
	 	 	 
	 	Lender	 
	 	BANK
    OF NEW ZEALAND	 


 




    	 



     


    

 


PARTIES


 


	1.	BENDON
    LIMITED (Company Number 110935) (the “Initial Borrower”);
	 	 
	2.	THE
    PARTIES LISTED IN SCHEDULE 1 (the “Initial Guarantors”);
	 	 
	3.	BENDON
    GROUP HOLDINGS LIMITED (ACN 619 054 938) (the “Acceding Guarantor” and the “Acceding Security
    Provider); and
	 	 
	4.	BANK
    OF NEW ZEALAND (the “Lender”).


 


BACKGROUND


 


	A.	The
    Initial Borrower, Initial Guarantors and the Lender are party to the Existing Agreement.
	 	 
	B.	It
    is proposed that following the reorganisation of the Bendon group pursuant to the Merger Implementation Plan, Bendon Group
    Holdings Limited will be the sole shareholder of both the Borrower and Naked.
	 	 
	C.	The
    parties have agreed to amend and restate the Existing Agreement as set out in this deed including provision for the accession
    of the Acceding Guarantor and the granting of security by the Acceding Security Provider


 


TERMS
OF THIS DEED


 


	1.	INTERPRETATION
	 	 
	1.1	Definitions:
    Unless the context otherwise requires, in this deed:


 


“Amended
Agreement” means the Existing Agreement as amended and restated on the Effective Date in accordance with this deed.


 


“Company”
has the meaning given to it in the Composite GSD.


 


“Composite
GSD” means the composite general security deed dated 27 June 2016 given by Bendon Limited, among other Initial Guarantors,
in favour of the Lender (as secured party) (as amended from time to time).


 


“Effective
Date” means the date notified by the Lender as the Effective Date in accordance with clause 2.


 


“Existing
Agreement” means the Facility Agreement dated 26 June 2016 between the Parent (as parent), the Initial Guarantors (as
guarantors) and the Lender (as lender) (as amended from time to time).


 


“Merger”
means the merger between Naked Merger Sub (as defined in the Merger Implementation Plan) and Naked, as provided for in the
Merger Implementation Plan.


 


“Merger
Implementation Plan” means the merger implementation plan prepared by the Initial Borrower and sets out in sufficient
detail the steps and payment flows (including timing) to implement the Merger, including (among other things):


 




    	 



     


    

 


	 	(a)	the
    funds flow demonstrating the repayment of the Amount Outstanding under the Existing Agreement in accordance with conditions
    precedent 6; and
	 	 	 
	 	(b)	the
    conversion into equity the debt currently subordinated pursuant to the Deeds of Subordination (as defined in the Existing
    Agreement).


 


“Naked”
means Naked Brand Group Inc.


 


	1.2	Definitions
    in Amended Agreement: Terms capitalised but not defined in this deed have the meaning given to them in the Existing Agreement.
	 	 
	1.3	Miscellaneous:
    Except to the extent that the context requires otherwise, the interpretation provisions in clauses 1.2, 1.3 and 1.4 of
    the Amended Agreement shall apply to this deed.
	 	 
	2.	EFFECTIVE
    DATE


 


The
Effective Date shall be the date the Lender confirms to the Borrower that it has received, and found to be satisfactory to it
in form and substance, the documents and evidence described in Schedule 2.


 


	3.	AMENDMENT
    AND RESTATEMENT
	 	 
	3.1	Amendment
    and restatement: With effect from the Effective Date, the Existing Agreement shall be amended and restated in the form
    set out in Schedule 3, so that the rights and obligations assumed by the parties shall, on and after the Effective Date, be
    governed by and construed in accordance with the Amended Agreement.
	 	 
	3.2	References
    to Existing Agreement: With effect from the Effective Date, all references in the Finance Documents (other than this deed)
    to the Existing Agreement will mean the Amended Agreement.
	 	 
	3.3	Continuing
    Agreement: Except to the extent amended by this deed, the Existing Agreement remains in full force and effect.
	 	 
	3.4	Finance
    Document: This deed is a Finance Document for the purposes of the Amended Agreement.
	 	 
	3.5	Condition
    Subsequent: It is a condition subsequent to the amendment and restatement of the Existing Agreement under this deed that:
	 	 	 
	 	(a)	within
    2 Business Days of the Effective Date, Naked (and each of its wholly owned subsidiaries, including Naked Inc) accedes to the
    Amended Agreement as a New Guarantor by fulfilling the requirements set out in clause 26.3 of the Amended Agreement; and
	 	 	 
	 	(b)	within
    30 days of the Effective Date, the GBP-denominated outstanding bank guarantee issued by The Hongkong and Shanghai Banking
    Corporation is terminated and replaced by a corresponding Instrument issued by the Lender.
	 	 	 
	 	(c)	Failure
    to satisfy the condition specified in paragraphs (a) and (b) above within the stated timeframe shall constitute an immediate
    Event of Default.


 




    	 



     


    

 


	4.	ACCESSION
    OF ACCEDING GUARANTOR TO AMENDED AGREEMENT
	 	 
	4.1	The
    Acceding Guarantor has resolved to execute this deed for the purpose of becoming a Guarantor under the Amended Agreement pursuant
    to the provisions to that effect contained in clause 26.3 of the Amended Agreement.
	 	 
	4.2	The
    Acceding Guarantor declares, for the benefit of the Lender, that it is a Guarantor and will be deemed to be a party under
    the Amended Agreement, which shall apply to the Acceding Guarantor as a Guarantor and agrees to be bound by all the terms
    and conditions of the Amended Agreement as if it were a party to the Amended Agreement with the rights and obligations of
    a Guarantor under the Amended Agreement.
	 	 
	4.3	Each
    provision of the Amended Agreement relating to or affecting the Guarantors is deemed to be incorporated into this deed in
    the same manner and to the same extent as if set out in full and made applicable to the Acceding Guarantor. The Acceding Guarantor
    undertakes to the Lender to punctually comply with all the undertakings imposed on it under this Deed and agrees that it is
    bound by all the terms and conditions of the Amended Agreement as if it were an original party to the Amended Agreement with
    the rights, liabilities and obligations of a Guarantor under the Amended Agreement
	 	 
	4.4	Pursuant
    to section 14 of the Property Law Act 2007, it is declared that there shall be deemed to be incorporated in this deed all
    the covenants, powers, conditions and provisions of the Amended Agreement in the same manner and to the same extent as if
    the covenants, powers, conditions and provisions had been (with all necessary changes) set out in full in this deed and made
    applicable to the Acceding Guarantor, and the Acceding Guarantor accordingly covenants and agrees jointly and severally with
    all other Guarantors to duly perform and comply with and be bound by those covenants, powers, conditions and provisions.
	 	 
	4.5	The
    Acceding Guarantor represents that it has the power to enter into this deed and has taken all necessary action to enter into
    the transactions referred to in the deed and to execute this deed in order to make this deed binding on it.
	 	 
	5.	ACCESSION
    OF ACCEDING SECURITY PROVIDER TO THE COMPOSITE GSD
	 	 
	5.1	For
    the purposes of this clause 5, capitalised terms not otherwise defined in this deed shall have the meaning given to that term
    in the Composite GSD.
	 	 
	5.2	The
    Acceding Security Provider has resolved to execute this deed for the purposes of becoming a Company under the Composite GSD
    pursuant to the provisions to that effect contained in clause 4 of the Composite GSD.
	 	 
	5.3	The
    Acceding Security Provider declares for the benefit of the Lender (in its capacity as Secured Party under the Composite GSD),
    that it is a Company and will be deemed to be a party under the Composite GSD which shall apply to the Acceding Security Provider
    as a Company.
	 	 
	5.4	To
    secure due payment of the Secured Indebtedness and performance of the Secured Obligations, the Acceding Security Provider
    grants to the Lender (in its capacity as Secured Party under the Composite GSD):


 




    	 



     


    

 


	 	(a)	a
    security interest in its Personal Property; and
	 	 	 
	 	(b)	a
    fixed charge over its Other Property.
	 	 	 
	5.5	In
    respect of its accounts receivable, the security interest takes effect as a transfer of those accounts receivable.
	 	 
	5.6	These
    security interests will be treated for the purposes of the Composite GSD as having being created pursuant to clause 3 of the
    Composite GSD.
	 	 
	5.7	Each
    provision of the Composite GSD relating to or affecting the Companies or the security interests created under the Composite
    GSD is deemed to be incorporated in this deed in the same manner and to the same extent as if set out in full and made applicable
    to the Acceding Security Provider. The Acceding Security Provider undertakes to the Lender (in its capacity as Secured Party
    under the Composite GSD) to punctually comply with all the undertakings imposed on it under this deed or the Composite GSD.
	 	 
	5.8	The
    Acceding Security Provider irrevocably appoints the Lender, any Receiver, each nominee or the Lender (in its capacity as Secured
    Party) in whose name any Secured Property is held and each authorised officer or attorney of the Lender (in its capacity as
    Secured Party) severally to be its attorney (with full power to appoint substitutes and to sub-delegate) on its behalf and
    in its name or otherwise in the same terms as set out in clause 14 of the Composite GSD.
	 	 
	5.9	The
    Acceding Security Provider and the Lender agrees that:
	 	 	 
	 	(a)	this
    deed is supplemental to the Composite GSD, in terms of section 14 of the Property Law Act 2007; and
	 	 	 
	 	(b)	this
    deed constitutes a “Supplemental Deed” for the purposes of the Composite GSD.
	 	 	 
	6.	REPRESENTATIONS
    AND WARRANTIES
	 	 
	6.1	General:
    each of the Initial Borrower, the Initial Guarantors and the Acceding Guarantors makes the representations in clause 21
    of the Amended Agreement on the date of this deed, and shall be deemed to make those representations and warranties on the
    Effective Date, in each case by reference to the facts and circumstances existing as at that date.
	 	 
	6.2	Current
    compliance: each Obligor represents and warrants in relation to itself and each other Obligor that there is no subsisting
    breach by it or any other Obligor of any of their undertakings in any Finance Document.
	 	 	 
	7.	CONTINUING
    LIABILITY
	 	 	 
	 	Notwithstanding
    any other provision of this deed, on and from the Effective Date the rights and liabilities of all parties shall be preserved
    in respect of any breach of the Existing Agreement which arose prior to the Effective Date (whether or not any party was aware
    of such breach prior to that Effective Date) and all corresponding indemnity or other rights and obligations in respect of
    any such breach are likewise preserved.


 




    	 



     


    

 


	8.	ACKNOWLEDGEMENT
	 	 
	8.1	Each
    of the Obligors acknowledges and agrees to the terms of this deed and confirms that its obligations under or in relation to
    the Amended Agreement howsoever arising remain in full force and effect.
	 	 
	8.2	The
    Lender consents to the steps set out in the Merger Implementation Plan, subject to the Effective Date occurring within 10
    Business Days of the date of this deed.
	 	 
	9.	GENERAL
	 	 
	9.1	Arrangement
    Fee: The Borrower will pay to the Lender, on 1 October 2018, an arrangement fee of 3.00 per cent of the Facility Limit,
    The Lender acknowledges that NZ$50,000 has been received in part payment of this fee.
	 	 
	9.2	Costs:
    Clause 19 of the Amended Agreement is incorporated into this deed as if set out in full and with any necessary consequential
    amendment and forms part of this deed.
	 	 
	9.3	Governing
    Law: This deed is governed by and must be construed in accordance with the laws of New Zealand and the parties submit
    to the non-exclusive jurisdiction of the Courts of New Zealand.
	 	 
	9.4	Service:
    Without prejudice to any other mode of service allowed under any relevant law, each Initial Guarantor, each Acceding Guarantor
    and the Acceding Security Provider not incorporated in New Zealand:
	 	 	 
	 	(a)	irrevocably
    appoints the Initial Borrower as its agent for service of process in relation to any proceedings in connection with any Finance
    Document (including this deed); and
	 	 	 
	 	(b)	agrees
    that failure by a process agent to notify the relevant Initial Guarantor, Acceding Guarantor or Acceding Security Provider
    of the process will not invalidate the proceedings concerned.
	 	 	 
	9.5	Counterparts:
    This deed may be signed in any number of counterparts, all of which together shall constitute one and the same instrument.
    Any party may enter into this deed by signing any such counterpart.
	 	 
	10.	DELIVERY
    AND NOTICE
	 	 
	10.1	Without
    limiting any other mode of delivery this deed will be delivered by each party on the earlier of:
	 	 	 
	 	(a)	physical
    delivery of an original of this deed, executed by each party, into the custody of each other party or its solicitors; or
	 	 	 
	 	(b)	transmission
    by each party, its solicitors or any other person authorised in writing by that party of a facsimile, photocopied or scanned
    copy of an original of this deed, executed by that party, to each other party or its solicitors.
	 	 	 
	10.2	The
    Acceding Guarantor’s and Acceding Security Provider’s initial notice details are as follows: 


 




    	 



     


    

 


Bendon
Group Holdings Limited


Address:
Alexandria Creative Park, Building 7C,


2
Huntley Street, Alexandria NSW 2015,


Sydney,
Australia


 


Attention:
Howard Herman Facsimile


 


+61
2 9384 2401 Telephone: +61 2 9384 2420


 


Email:
Howard.Herman@bendon.com


 




    	 



     


    

 


SCHEDULE
1


INITIAL
GUARANTORS


 


	1.	Bandon
    Limited (Company Number 110935)
	 	 
	2.	Bendon
    Retail Limited (Company Number 1013361)
	 	 
	3.	Bendon
    Holdings Limited (Company Number 480331)
	 	 
	4.	Bendon
    UK Limited
	 	 
	5.	Bendon
    Holdings Pty Limited (ACN 094 492 841)
	 	 
	6.	Bendon
    USA Inc.
	 	 
	7.	Bendon
    Pty Limited (ACN 001 222 064)
	 	 
	8.	Bendon
    Intimates Pty Limited (ACN 153 498 116)
	 	 
	9.	Bendon
    Retail Pty Limited (ACN 149 125 388)
	 	 
	10.	PS
    Holdings No. 1 Pty Limited (ACN 142 982 483)
	 	 
	11.	Pleasure
    State Pty Limited in its personal capacity and in its capacity as trustee of the Pleasure State Unit Trust (ACN 108 588 076)
	 	 
	12.	Pleasure
    State (HK) Limited (a company incorporated in Hong Kong with company registration number 1247545)


 




    	 



     


    

 


SCHEDULE
2


CONDITIONS
PRECEDENT





	1.	Finance
    Documents: An executed copy of:
	 	 	 	 
	 	(a)	this
    deed; and
	 	 
	 	(b)
    	an
    accession deed in respect of the Bendon Group Holdings Limited’s accession to the General Security Deed (Aus).
	 	 
	2.	Directors
    Certificates:
	 	 
	 	(a)	in
    respect of the Initial Borrower and each Initial Guarantor incorporated in New Zealand, a director’s certificate with
    customary attachments including powers of attorney (if any) in substantially the applicable form set out in Schedule 5 of
    the Amended Agreement;
	 	 
	 	(b)	in
    respect of Bendon UK Limited, a director’s certificate attaching or otherwise certifying previously delivered copies
    of:
	 	 	 	 
	 	 	(i)	certificate
    of incorporation and any certificate of incorporation on change of name;
	 	 	 	 
	 	 	(ii)	memorandum
    and articles of association;
	 	 	 	 
	 	 	(iii)	shareholder
    resolutions; and
	 	 	 	 
	 	 	(iv)	specimen
    signatures;
	 	 	 	 
	 	(c)	in
    respect of the Acceding Guarantor and each Initial Guarantor incorporated or established in Australia:


 


delivery
to the Lender of a verification certificate signed by two directors or a director and secretary of each Australian entity, in
form and substance satisfactory to the Lender, attaching or otherwise certifying previously delivered copies of:


 


	 	 	 	(1)	certificate
    of registration and any change of name certificate;
	 	 	 	 	 
	 	 	 	(2)	constitutional
    documents, and in relation to the Trustee, the Trust Deed;
	 	 	 	 	 
	 	 	 	(3)	power
    of attorney (if applicable); and
	 	 	 	 	 
	 	 	 	(4)	specimen
    signatures; and
	 	 	 	 	 
	 	 	(ii)	search
    results satisfactory to the Lender of ASIC and the ‘register’ as defined in the Australian PPSA in relation to
    the Group and evidence that appropriate Australian PPSA registrations have been made on the ‘register’ as defined
    in the Australian PPSA;
	 	 	 	 	 
	 	(d)	In
    respect of Pleasure State (HK) Limited, a director’s certificate attaching or otherwise certifying previously delivered
    copies of:
	 	 	 	 	 
	 	 	(i)
    certificate of incorporation and any certificate of incorporation on change of name;
	 	 	 
	 	 	(ii)
    memorandum and articles of association;
	 	 	 
	 	 	(iii)
    if relevant, power of attorney;
	 	 	 
	 	 	(iv)
    shareholder resolutions; and _


 




    	 



     


    

 


	 	 	(v)	specimen
    signatures;
	 	 	 	 	 
	 	(e)	In
    respect of Bendon USA Inc.:
	 	 	 
	 	 	(i)	a
    certificate from the secretary or comparable authorized representative of Bendon USA Inc., dated the date of this deed , attaching
    or otherwise certifying previously delivered copies of:
	 	 	 	 	 
	 	 	 	(1)	the
    certificate of incorporation of Bendon USA Inc., certified by the Secretary of State of the State of Delaware, and evidence
    of good standing;
	 	 	 	 	 
	 	 	 	(2)	the
    bylaws of Bendon USA Inc.; and
	 	 	 	 	 
	 	 	 	(3)	an
    officer incumbency and specimen signature certificate.
	 	 	 	 	 
	 	 	(ii)	a
    closing certificate of Bendon USA Inc., signed by an authorized officer of Bendon USA Inc., as to clauses 2.3(b) and 2.3(c)
    of the Amended Agreement.
	 	 	 	 	 
	3.	Legal
    Opinions: The following legal opinions:
	 	 	 	 	 
	 	(a)	a
    legal opinion from Buddle Findlay in relation to New Zealand law; and
	 	 	 
	 	(b)	a
    legal opinion from Norton Rose Fulbright in relation to Australian law.
	 	 	 	 	 
	4.	Fees:
    Payment of all fees, costs and expenses due and payable to the Lender (including, without limitation, the arrangement
    fee under clause 8.1) and its advisers (including the Lender’s legal advisers).
	 	 
	5.	Repayment:
    Evidence to the satisfaction of the Lender that the Amount Outstanding under the Existing Agreement has been or will be
    reduced to NZ$20,000,000 (not taking into account any issued Instruments) on or prior to the Effective Date.
	 	 
	6.	Merger
    Implementation Plan: a certified copy of the Merger Implementation Plan.
	 	 
	7.	Merger:
    a confirmation from a director of Bendon Limited that the Merger has occurred in accordance with the Merger Implementation
    Plan.
	 	 
	8.	Registration
    of Security: evidence to the satisfaction of the Lender that required registrations in respect of the accession deed to
    the General Security Deed (Aus) have been or will be effected, and all other things necessary to achieve the priorities required
    by the Lender have been or will be completed to the Lender’s satisfaction.
	 	 
	9.	Sub-ordinated
    Debt: evidence to the satisfaction of the Lender that:
	 	 	 	 	 
	 	(a)	all
    subordinated debt (howsoever described) under each deed of subordination set out below has converted to equity:
	 	 	 	 	 
	 	 	(i)	deeds
    of subordination dated on or about the date hereof between the Initial Borrower, the Lender and each of EJ Group Limited and
    Nesriver Pty Limited;
	 	 	 	 
	 	 	(ii)	deed
    of subordination dated 29 September 2016 between the Initial Borrower, Linkrik Investment Limited and the Lender;


 




    	 



     


    

 


	 	 	(iii)	deed
    of subordination dated 29 September 2016 between the Initial Borrower, Daniel Raymond Fields and the Lender;
	 	 	 	 
	 	 	(iv)	deed
    of subordination dated 10 November 2016 between the Initial Borrower, ENARES Pty Ltd and the Lender;
	 	 	 	 
	 	 	(v)	deed
    of subordination dated 15 December 2016 between the Initial Borrower, Gemini Global Investment Fund Pte Ltd and the Lender;
    and
	 	 	 	 
	 	 	(vi)	deed
    of subordination dated 16 December 2016 between the Initial Borrower, MV Finances SARL and the Lender,
	 	 	 	 
	 	(b)	each
    security interest granted by Bendon Limited in favour of EJ Group Limited, Nesriver Pty Limited, Linkrik Investment Limited,
    Daniel Raymond Fields, ENARES Pty Ltd, Gemini Global Investment Fund Pte Ltd or MV Finances SARL (if any) have been fully
    and irrevocably discharged.
	 	 	 	 
	10.	Group
    Structure: A certified copy of a diagram showing the structure of the Consolidated Group as at the Effective Date.
	 	 
	11.	KYC/Identification:
    To the extent not already provided to the Lender, all documentation reasonably required by the Lender in order to carry
    out “know your customer” or similar checks under applicable laws relating to anti-money laundering, terrorist
    financing and trade sanctions in connection with the transactions contemplated by the Finance Documents.
	 	 
	12.	Tax
    Confirmation: Confirmation from a director of the Initial Borrower that:
	 	 	 	 
	 	(a)	the
    taxes and tax arrangements of each Obligor are up to date as at the Commencement Date and each Obligor is in compliance with
    its obligations (including in connection with any payment plan arrangements) in all material respects;
	 	 	 
	 	(b)	each
    Obligor has no current or anticipated tax issues or tax liabilities (other than those existing in the ordinary course of business
    or that have been previously disclosed to the Lender) or disputes with the New Zealand Inland Revenue Department or the revenue
    authorities in any other jurisdiction.
	 	 	 	 
	13.
    	Other:
    Any other documents or other evidence reasonably requested by the Lender.


 




    	 



     


    

 


SCHEDULE
3


(AMENDED
AGREEMENT)


 




    	 



     


    

 


EXECUTION
VERSION


 


	 	Amended
                                         and Restated

                                                                     Facility
                                         Agreement

	 	 
	 	Bendon
    Limited 
	 	Initial
    Borrower
	 	
	 	 
	 	and
	 	 
	 	Bendon
    Limited, Bendon Retail Limited, Bendon Holdings Limited, Bendon UK Limited, Bendon Group Holdings Limited, Bendon Holdings
    Pty Limited, Bendon USA Inc., Bendon Pty Limited, Bendon Intimates Pty Limited, Bendon Retail Pty Limited, PS Holdings No.
    1 Pty Limited, Pleasure State Pty Limited and Pleasure State (HK) Limited
	 	 
	 	Initial
    Guarantors
	 	
	 	 
	 	and
	 	 
	 	Bank
    of New
	 	Zealand
    Lender
	 	 
	 	Originally
    Dated 27 June 2016 (as amended from time to time)


 




    	 



     


    

 


Contents


 


	1.	Interpretation	3
	 	 	 
	2.	Facilities	23
	 	 	 
	3.	[Intentionally
    deleted]	26
	 	 	 
	4.	[Intentionally
    deleted]	26
	 	 	 
	5.	[Intentionally
    deleted]	26
	 	 	 
	6.	[Intentionally
    deleted]	26
	 	 	 
	7.	[Intentionally
    deleted]	26
	 	 	 
	8.	Revolving
    Credit Facility	26
	 	 	 
	9.	Changes
    to the calculation of interest	28
	 	 	 
	10.	Instrument
    Facility	29
	 	 	 
	11.	Ancillary
    Facilities	32
	 	 	 
	12.	Repayment	32
	 	 	 
	13.	Illegality	32
	 	 	 
	14.	Default
    interest	33
	 	 	 
	15.	Fees	33
	 	 	 
	16.	Taxes	34
	 	 	 
	17.	Increased
    costs	38
	 	 	 
	18.	Indemnities	40
	 	 	 
	19.	Costs	41
	 	 	 
	20.	Cross
    guarantee	41
	 	 	 
	21.	Representations	44
	 	 	 
	22.	Undertakings	50
	 	 	 
	23.	Events
    of Default	65


 




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	24.	Event
    of Review	69
	 	 	 
	25.	Changes
    to the Lender	69
	 	 	 
	26.	Changes
    to the Obligors	70
	 	 	 
	27.	Payment
    mechanics	72
	 	 	 
	28.	Set-off
    and deposits	72
	 	 	 
	29.	Power
    of Attorney	73
	 	 	 
	30.	Calculations
    and evidence	73
	 	 	 
	31.	Remedies
    and waivers	74
	 	 	 
	32.	Notices
    74	 
	 	 	 
	33.	Australian
    PPSA provisions	76
	 	 	 
	34.	Miscellaneous	77
	 	 	 
	35.	Governing
    law	78
	 	 	 
	Schedule
    1. Conditions precedent	80
	 	 	 
	Schedule
    2. Form of Drawing Notice for Revolving Credit Facility	81
	 	 	 
	Schedule
    3. Security Documents	82
	 	 	 
	Schedule
    4. Form of Certificate	83
	 	 	 
	Schedule
    5. Form of Supplemental Deed for New Borrower	89
	 	 	 
	Schedule
    6. Form of Supplemental Deed for New Guarantor	91
	 	 	 
	Schedule
    7. Compliance Certificate	93
	 	 	 
	Schedule
    8. Group Structure	95
	 	 	 
	Schedule
    9. Serial Numbered Secured Property	96


 




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This
Loan Facility Agreement is originally made on 27 June 2016 (as amended from time to time, most recently pursuant to a Deed
of Amendment and Restatement dated June 2018)


 


	between	1.	Bendon
    Limited (the Initial Borrower)
	 	 	 
	and	2.	Bendon
    Retail Limited, Bendon Holdings Limited, Bendon UK Limited a company incorporated under the laws of England and Wales with
    company number 04200853, Bendon Group Holdings Limited, Bendon Holdings Pty Limited, Bendon USA Inc., Bendon Pty Limited,
    Bendon Intimates Pty Limited, Bendon Retail Pty Limited, PS Holdings No. 1 Pty Limited, Pleasure State Pty Limited (in its
    personal capacity and as trustee of the Pleasure State Unit Trust) and Pleasure State (HK) Limited (a company incorporated
    in Hong Kong with company registration number 1247545) (together, the Initial Guarantors and each, an Initial Guarantor)
	 	 	 
	and	3.	Bank
    of New Zealand (the Lender)


 


Introduction


 


The
Lender is willing to make available to the Borrower a loan facility on the terms of this Agreement.


 


It
is agreed


 


	1.	Interpretation
	 	 
	1.1	Definitions


 


In
this Agreement, unless the context otherwise requires:


 


Accommodation
means any Drawing or other accommodation provided to an Obligor under this Agreement;


 


Accounting
Principles means:


 


	 	(a)	in
    respect of an Obligor incorporated in New Zealand, generally accepted accounting practice as defined in section 8 of the Financial
    Reporting Act 2013;
	 	 	 
	 	(b)	in
    respect of an Obligor incorporated in any other jurisdiction, generally accepted accounting practice in that jurisdiction;


 


Actual
Gross Profit means, in relation to a period, the actual gross profit of the Group for that period, as provided for in the
monthly financial accounts provided pursuant to clause 22.2(b);


 


Actual
Sales means, in relation to a period, the actual sales of the Group for that period, as provided for in the monthly financial
accounts provided pursuant to clause 22.2(b);


 


Advance
means a Drawing (or part of a Drawing) made by the Lender to the Borrower or the issuance of an Instrument by the Lender on
behalf of the Borrower;


 


Amount
Outstanding means, at any time, the NZ Dollar Equivalent of:


 




    	3



     


    

 


	 	(a)	the
    aggregate principal amount of each Drawing outstanding at that time; and
	 	 	 
	 	(b)	the
    Maximum Liability of all Instruments on issue at that time, together with any interest, fees, costs and other amounts then
    due and payable by the Borrower to the Lender;


 


AUD
means the lawful currency of Australia;


 


Australian
Corporations Act means the Corporations Act 2001 (Cth) (Australia);


 


Australian
PPSA means the Personal Property Securities Act 2009 (Cth) (Australia);


 


Australian
Tax Act means the Income Tax Assessment Act 1936 (Cth) (Australia) or the Income Tax Assessment Act 1997 (Cth)
(Australia);


 


Available
Facility means, at any time:


 


	 	(a)	in
    respect of the Revolving Credit Facility, the Revolving Credit Facility Limit less:
	 	 	 	 
	 	 	(i)	the
    amount of the Revolving Credit Facility Limit that has been cancelled; and
	 	 	 	 
	 	 	(ii)	the
    NZ Dollar Equivalent of the aggregate amount of all Drawings that are outstanding at that time;
	 	 	 	 
	 	(b)	in
    respect of the Instrument Facility, the Instrument Facility Limit less:
	 	 	 	 
	 	 	(i)	the
    Maximum Liability in respect of any outstanding Instruments issued by the Lender; and
	 	 	 	 
	 	 	 	 
	 	 	(ii)	the
    Maximum Liability in respect of any other Instruments that are due to be made or issued on or before the proposed Drawing
    Date, other than any Instruments that are due to expire or to be cancelled, repaid or prepaid (including, in relation to Instruments,
    amounts of cash cover or cash collateral due to be received) on or before the proposed Drawing Date;


 


Availability
Period means:


 


	 	(a)	in
    relation to the Instrument Facility, the period starting on the Commencement Date and ending on the earlier of:
	 	 	 	 
	 	 	(i)	10
    Business Days prior to the Termination Date; and
	 	 	 	 
	 	 	(ii)	the
    date that the Instrument Facility is cancelled under this Agreement; and
	 	 	 	 
	 	(b)	in
    relation to the Revolving Credit Facility, the period starting on the Commencement Date and ending on the earlier of:
	 	 	 	 
	 	 	(i)	10
    Business Days prior to the Termination Date; and
	 	 	 	 
	 	 	(ii)	the
    date that the Revolving Credit Facility is cancelled under this Agreement;


 




    	4



     


    

 


BBP
Rate means the Lender’s ‘Business Basis Premium’ rate (rounded upwards to four decimal places) for
the relevant period displayed on the Lender’s website (currently published at https://www.bnz.co.nz/business-banking/loans-and-finance/committed-cash-advance-facility,
or on any replacement page on the Lender’s website which displays that rate).


 


Beneficiary
means, in relation to an Instrument, the person or persons in whose favour that Instrument is issued;


 


BKBM
means, in relation to any Drawing:


 


	 	(a)	the
    applicable Screen Rate as of the Specified Time for a period equal in length to the Interest Period of that Drawing; or
	 	 	 
	 	(b)	as
    otherwise determined pursuant to clause 9, and if, in either case, that rate is less than zero, BKBM shall be deemed to be
    zero.


 


BNZ
Liquidity Amount means the amount determined by the Lender from time to time and advised to the Borrower as the liquidity
premium applied by the Lender to advances or other accommodation;


 


Borrower
means the Initial Borrower and any other person who becomes a Borrower under clause 26.2 (Additional Borrowers);


 


Budgeted
Gross Profit means, in relation to a period, the budgeted gross profit of the Group for that period, as provided for in the
budget provided pursuant to clause 22.2(d);


 


Budgeted
Sales means, in relation to a period, the budgeted gross profit of the Group for that period, as provided for in the budget
provided pursuant to clause 22.2(d);


 


Business
Basis Premium means, in relation to any Drawing:


 


	 	(a)	the
    applicable BBP Rate as of the Specified Time for a period equal in length to the Interest Period of the Drawing; or
	 	 	 
	 	(b)	as
    otherwise determined pursuant to clause 9.


 


Business
Day means a day other than a Saturday or Sunday on which registered banks (as defined in the Reserve Bank of New Zealand Act
1989) are open for business in Wellington and Auckland;


 


Capital
Expenditure means any expenditure which would in accordance with the Accounting Principles be treated as capital expenditure
in the audited consolidated financial statements of the Consolidated Group;


 


Certificate
means any document of title relating to any Shares or Share Rights; Code means the Internal Revenue Code of 1986, as
amended; Commencement Date means 27 June 2016;


 


Compliance
Certificate means a compliance certificate substantially in the form set out in Part A of Schedule 7 (Form of Compliance Certificate)
and provided to the Lender in accordance with clause 22.2 (Reporting undertakings);


 




    	5



     


    

 


Consolidated
Group means, at any time, the group of companies comprised of the Parent and its subsidiaries at that time;


 


Contribution
Notice means a contribution notice issued by the Pensions Regulator under section 38 or section 47 of the Pensions Act 2004
(UK);


 


Control
Event means in respect of any Secured Property that is, or would have been, a Revolving Asset:


 


	 	(a)	the
    relevant Obligor breaches, or attempts to breach clause 4.1 of the General Security Deed (Aus) in respect of that Secured
    Property or takes any step which would result in it doing so;
	 	 	 
	 	(b)	a
    person takes a step (including signing a notice or direction) which is likely to result in taxes, or an amount owing to an
    authority, ranking ahead of the security interest in that Secured Property under this document;
	 	 	 
	 	(c)	distress
    is levied or a judgment, order or security interest is enforced or becomes enforceable over that Secured Property;
	 	 	 
	 	(d)	the
    Lender gives a notice to the relevant Obligor that such Secured Property is not a Revolving Asset (however, the Lender may
    only give a notice if an Event of Default is continuing);
	 	 	 
	 	(e)	in
    respect of all Secured Property that is or would have been Revolving Assets, an Event of Default referred to in clause 23.1(f)
    or 23.1(g) of this Agreement occurs;


 


Deed
of Amendment and Restatement (June 2018) means the deed of amendment and restatement dated ___ June 2018 between the Borrower,
the Guarantors and the Lender.


 


Drawing
means each principal amount advanced (or to be advanced) to the Borrower under the Revolving Credit Facility in accordance
with the terms of this Agreement;


 


Drawing
Date means, in relation to a Drawing or an Instrument, the date on which it is (or is to be) advanced, which must be a Business
Day during the relevant Availability Period;


 


Drawing
Notice means a drawing notice substantially in the form set out in Schedule 2;


 


EBIT
means, in respect of any period and a Group, the consolidated net profit after tax of the relevant Group for that period,
as would be disclosed in the financial statements of the relevant Group if prepared in accordance with Accounting Principles for
that period, adjusted by:


 


	 	(a)	adding
    an amount equal to the aggregate of:
	 	 	 	 
	 	 	(i)	Total
    Interest Costs;
	 	 	 	 
	 	 	(ii)	losses
    of an unusual, abnormal or non-recurring nature for that period;
	 	 	 	 
	 	 	(iii)	the
    income tax expense for that period;
	 	 	 	 
	 	 	(iv)	unrealised
    exchange losses for that period;


 




    	6



     


    

 


	 	 	(v)	any
    reduction during that period in the non-cash mark to market value of financial derivatives entered into by a Group Member
    as required by Accounting Principles; and
	 	 	 	 
	 	 	(vi)	losses
    of a capital nature or that relate to unrealised revaluation losses, in each case for that period;
	 	 	 	 
	 	(b)	deducting
    an amount equal to the aggregate of:
	 	 	 	 
	 	 	(i)	gains
    of an unusual, abnormal or non-recurring nature for that period;
	 	 	 	 
	 	 	(ii)	unrealised
    exchange gains for that period;
	 	 	 	 
	 	 	(iii)	any
    increase during that period in the non-cash mark to market value of financial derivatives entered into by a Group Member as
    required by Accounting Principles; and
	 	 	 	 
	 	 	(iv)	profits
    of a capital nature or that relate to unrealised revaluation gains, in each case for that period, as adjusted to remove earnings
    of any Group Member that have been included in the earnings of the Group but that are attributable to any third party (not
    being a Group Member);


 


EBITDA
means, in respect of any period and a Group, the sum of:


 


	 	(a)	EBIT
    for that Group for that period; and
	 	 	 
	 	(b)	depreciation
    and amortisation on fixed and other property of the relevant Group during that period, which would be disclosed by consolidated
    financial statements of the Group if they were prepared in accordance with Accounting Principles as at the last day of that
    period;


  


Effective
Date has the meaning given to that term in the Deed of Amendment and Restatement (June 2018);


 


Environmental
Law means any law relating to the environment, land or water use, noise, smell, pollution or contamination, toxic or hazardous
substances, waste disposal or conservation (including the Resource Management Act 1991) and any consent or notice under any such
law;


 


Event
of Default means any event specified in clause 23 (Events of Default) and any other event agreed from time to time by the
Lender and the Borrower to constitute an Event of Default;


 


Event
of Review means any event specified in clause 24 (Event of Review) and any other event agreed from time to time by the Lender
and the Borrower to constitute an Event of Review;


 


Euros
and EUR refers to the official unit of exchange of, and the currency of the majority of the states comprising, the
European Union;


 


Facility
means the Revolving Credit Facility and the Instrument Facility and Facilities means both;


 




    	7



     


    

 


Facility
Limit means the aggregate, at any time, of the Revolving Credit Facility Limit and the Instrument Facility Limit at that time;


 


FATCA
means:


 


	 	(a)	sections
    1471 to 1474 of the Code or any associated regulations;
	 	 	 
	 	(b)	any
    treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any
    other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph
    (a) above; or
	 	 	 
	 	(c)	any
    agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with
    the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction;


 


FATCA
Application Date means:


 


	 	(a)	in
    relation to a “withholdable payment” described in section 1473(1)(A)(i) of the Code (which relates to payments
    of interest and certain other payments from sources within the US), 1 July 2014;
	 	 	 
	 	(b)	in
    relation to a “withholdable payment” described in section 1473(1)(A)(ii) of the Code (which relates to “gross
    proceeds” from the disposition of property of a type that can produce interest from sources within the US), 1 January
    2019; or
	 	 	 
	 	(c)	in
    relation to a “passthru payment” described in section 1471(d)(7) of the Code not falling within paragraphs (a)
    or (b) above, 1 January 2019, or, in each case, such other date from which such payment may become subject to a deduction
    or withholding required by FATCA as a result of any change in FATCA after the date of this Agreement;


 


FATCA
Deduction means a deduction or withholding from a payment under a Finance Document required by FATCA;


 


FATCA
Exempt Party means a party that is entitled to receive payments free from any FATCA Deduction;


 


Finance
Debt means any indebtedness in respect of money borrowed or raised or any other financial accommodation whatever in the nature
of, or having a similar economic effect to, borrowing or raising money, including indebtedness under or in respect of a negotiable
or other financial instrument, guarantee, interest, currency exchange or commodity hedge or other arrangement of any kind (calculated
on a net and marked to market basis), redeemable share, share the subject of a guarantee, discounting arrangement, the principal
amount of any finance or capital lease, hire purchase, deferred purchase price of an asset or service (other than where the relevant
transaction is entered into in the ordinary course of business and the purchase price is paid within 120 days of supply) or an
obligation to deliver goods or other property or provision of services paid for in advance by a financier or in relation to another
financing transaction;


 


Finance
Documents means:


 


	 	(a)	this
    Agreement;
	 	 	 
	 	(b)	the
    Security Documents;


 




    	8



     


    

 


	 	(c)	the
    Deed of Amendment and Restatement (June 2018);
	 	 	 
	 	(d)	any
    Hedge Agreement;
	 	 	 
	 	(e)	each
    Transactional Banking Document; and
	 	 	 
	 	(f)	each
    novation agreement between the Lender and ANZ Bank New Zealand Limited relating to any Hedge Agreement existing at the Commencement
    Date; and
	 	 	 
	 	(g)	each
    agreement evidencing an Ancillary Facility (including the business visa facility provided by the Lender on or about the date
    of this Agreement), and each other agreement (present or future), agreed by the Lender and the Borrower to be a Finance Document;


 


Financial
Support Direction means a financial support direction issued by the Pensions Regulator under section 43 of the Pensions Act
2004 (UK);


 


Free
Cashflow means, in respect of the Guaranteeing Group for a period, the greater of (1) zero, and (2) EBITDA for that period
after:


 


	 	(a)	adding
    the aggregate of any unusual, abnormal or non-recurring cash gains during that period which have been deducted from net profit
    for the purposes of determining EBIT;
	 	 	 
	 	(b)	deducting
    the aggregate, without double counting, of:
	 	 	 	 
	 	 	(i)	tax
    paid for that period;
	 	 	 	 
	 	 	(ii)	Total
    Interest Costs for that period net of all cash interest earned by an Obligor in that period;
	 	 	 	 
	 	 	(iii)	Capital
    Expenditure for that period;
	 	 	 	 
	 	 	(iv)	any
    unusual, abnormal or non-recurring losses or charges paid in cash during that period and which have been added to net profit
    for the purposes of determining EBIT; and
	 	 	 	 
	 	 	(v)	any
    non-cash items in EBITDA which are not otherwise adjusted pursuant to sub-paragraphs (i) to (iv) above; and
	 	 	 	 
	 	(c)	adding
    the amount of any decrease (and deducting the amount of any increase) in working capital for that period calculated as:
	 	 	 	 
	 	 	(i)	the
    aggregate value of accounts and other receivables and inventory, less the value of accounts and other payables on the last
    day of that period, for the Guaranteeing Group; less
	 	 	 	 
	 	 	(ii)	the
    aggregate value of accounts and other receivables and inventory, less the value of accounts and other payables on the first
    day of that period, for the Guaranteeing Group, adjusted for the cash changes in all current assets and current liabilities
    other than cash;


 




    	9



     


    

 


provided
that no amount shall be added (or deducted) more than once; GBP refers to the lawful currency of the United Kingdom;


 


General
Security Deed (Aus) means the General Security Deed dated on or about the date hereof between the Obligors named in paragraph
2 of Schedule 3 and the Lender;


 


Group
means the Consolidated Group or the Guaranteeing Group, as the context requires;


 


Group
Member means any member of the Consolidated Group or the Guaranteeing Group, as the context requires;


 


GST
means any goods and services or similar tax levied in accordance with the applicable GST Act;


 


GST
Act means the New Zealand Goods and Services Tax Act 1985 or the Australian A New Tax System (Goods and Services Tax) Act
1999 (Cth);


 


Guaranteed
Indebtedness means all indebtedness of the Obligors to the Lender;


 


Guaranteeing
Group means, at any time, the group of companies comprised of each Obligor at that time;


 


Guarantors
means the Initial Guarantors and any other person who becomes a Guarantor under clause 26.3 (Additional Guarantors);


 


Hedge
Agreement means each agreement pursuant to which an Obligor enters into a Treasury Transaction with the Lender (including,
for the avoidance of doubt, each ISDA or other derivatives master agreement and each Confirmation (as defined therein) relating
thereto);


 


Income
Tax Act means the Income Tax Act 2007;


 


Insolvency
Regulation shall mean the Council Regulation (EC) No. 1346/2000 on Insolvency Proceedings;


 


Instrument
means a letter of credit, bank guarantee, performance bond or other similar financial instrument issued under the Instrument
Facility;


 


Instrument
Facility means the Instrument facility provided by the Lender in accordance with clause 10;


 


Instrument
Facility Limit means NZ$1,345,000 as reduced from time to time in accordance with this Agreement;


 


Interest
Cover Ratio means, for any period from the first day of the Borrower’s financial year and ending on a Reporting Date,
the ratio of EBITDA of the Guaranteeing Group to interest payable under this Agreement for the period ending on that Reporting
Date;


 


Interest
Period means each period by reference to which an interest rate applicable to a Drawing, any Advance or another sum is determined
in accordance with this Agreement;


 




    	10



     


    

 


Interpolated
BBP Rate means, in relation to any Drawing, the rate (rounded to the same number of decimal places as the two relevant BBP
Rates) which results from interpolating on a linear basis between:


 


	 	(a)	the
    BBP Rate for the longest period (for which the BBP Rate is available) which is less than the Interest Period of that Drawing;
    and
	 	 	 
	 	(b)	the
    BBP Rate for the shortest period (for which the BBP Rate is available) which exceeds the Interest Period of that Drawing,
    each as of the Specified Time, provided that there shall be deemed to be a BBP Rate available in respect of three month periods,
    being a rate of 0% per annum, notwithstanding that this period and rate may not be displayed on the Lender’s website;


 


Interpolated
Screen Rate means, in relation to any Drawing, the rate (rounded to the same number of decimal places as the two relevant
Screen Rates) which results from interpolating on a linear basis between:


 


	 	(a)	the
    Screen Rate for the longest period (for which the Screen Rate is available) which is less than the Interest Period of that
    Drawing; and
	 	 	 
	 	(b)	the
    Screen Rate for the shortest period (for which the Screen Rate is available) which exceeds the Interest Period of that Drawing,
    each as of the Specified Time;


 


Inventory
means, on any date, the book value of all stock in trade (which for the purpose of this definition means, on any date, the
aggregate value of stock held by the Obligors for the purposes of its business on that date, excluding all stock where the value
attributed to it on the balance sheet exceeds market value, obsolete stock, stock that is over 90 days old and all stock that
is subject to any Security Interest (excluding any security interest held by the Lender pursuant to the Transaction Documents))
held by the Obligors as at that date.


 


Inventory
and Receivables means, on any date, the sum of Inventory and Receivables as at that date.


 


Inventory
and Receivables Ratio means, on any Reporting Date, the ratio of Inventory and Receivables to Working Capital Debt on that
date.


 


IP
means all trademarks, service marks, trade names, domain names, logos, get-up, patents, inventions, registered and unregistered
design rights, copyrights, topography rights, database rights, rights in confidential information and know how, and any associated
or similar rights anywhere in the world, which as now or in the future owns or (to the extent of its interests) in which it now
or in the future has an interest (in each case whether registered or unregistered and including any related licenses and sub-licenses
of the same granted by it or to it, applications and rights to apply for the same);


 


Issuer
means each company that has issued Shares to an Obligor, including another Obligor; Margin means 2.00% per cent per
annum;


 


Marketable
Securities means:


 


	 	(a)	‘intermediated
    securities’ and ‘investment instruments’ (each as defined in the Australian PPSA);


 




    	11



     


    

 


	 	(b)	an
    undertaking referred to in the exceptions in paragraphs (a), (b) and (c) of the definition of ‘debenture’ in the
    Australian Corporations Act;
	 	 	 
	 	(c)	a
    unit or other interest in a trust or partnership; and
	 	 	 
	 	(d)	a
    right or an option in relation to any of the above, whether issued or unissued;


 


Material
Secured Property means Secured Property with a value of greater than NZ$100,000 or its equivalent in any other currency;


 


Maximum
Liability means, in respect of an Instrument, the amount specified in that Instrument as the maximum aggregate liability able
to be claimed (exclusive of interest on such liability) under that Instrument in the currency in which the Instrument is denominated
less any amount cancelled and any amount paid by the Borrower to the Lender in respect of that Instrument whether as a deposit,
cash collateral or otherwise that has been approved by the Lender as reducing the Maximum Liability in respect of that Instrument;


 


Monthly
Compliance Certificate means a compliance certificate substantially in the form set out in Part B of Schedule 7 (Form of Monthly
Compliance Certificate) and provided to the Lender in accordance with clause 22.2 (Reporting undertakings);


 


New
Borrower has the meaning given to it in clause 26.2 (Additional Borrowers); New Guarantor has the meaning given to
it in clause 26.3 (Additional Guarantors);


 


New
Security Provider has the meaning given to it in clause 26.4 (Additional Security Providers);


 


NY
Financing Documents means:


 


	 	(a)	the
    security agreement, dated as of the date hereof, between Bendon USA Inc. and the Lender; and
	 	 	 
	 	(b)	the
    pledge agreement, dated as of the date hereof, between Bendon Holdings Limited and the Lender with respect to Bendon Holdings
    Limited’s shares of Bendon USA Inc.;


 


NZ
Dollar Equivalent means, in relation to an amount of NZ Dollars, that amount, and, in relation to an amount in an Optional
Currency, the amount of NZ Dollars which the Lender could purchase with that amount of US Dollars, AUD, GBP or Euros, (as appropriate),
in the New Zealand inter-bank market at 11 a.m. (New Zealand time) on the day on which the calculation is required to be made;


 


NZ
Dollars, NZ$ and NZD refer to New Zealand currency; NZ PPSA means the Personal Property Securities Act
1999; Obligor means the Borrower and each Guarantor;


 


Operating
Lease Expense means, in relation to any period, the aggregate of any rental paid in that period in connection with any operating
lease of real property (but excluding a lease that would be treated as a finance lease pursuant to the Accounting Principles);


 


Optional
Currency means AUD, EUR, GBP or USD;


 




    	12



     


    

 


Other
Property means Real Property and all of a Security Provider’s other present and after-acquired
property that is not Personal Property;


 


Parent
means Bendon Group Holdings Limited (ACN 619 054 938).


 


Pensions
Regulator means the body corporate called the Pensions Regulator established under Part I of the Pensions Act 2004 (UK);


 


Permitted
Acquisition means:


 


	 	(a)	an
    acquisition made for fair value in the ordinary course of business;
	 	 	 
	 	(b)	an
    acquisition that is the purchase of an asset by one Security Provider from another Security Provider; or
	 	 	 
	 	(c)	an
    acquisition that occurs with the prior written approval of the 
	 	 	 
	 	 	Lender;
    Permitted Disposal means a disposal:
	 	 	 
	 	(a)	in
    respect of which the Lender has given its prior written consent;
	 	 	 
	 	(b)	of
    inventory made in the ordinary course of business of the disposing entity;
	 	 	 
	 	(c)	of
    property where the proceeds of disposal are used within 12 months to purchase replacement property comparable or superior
    as to type, value or quality;
	 	 	 
	 	(d)	of
    property for fair market value on commercial arms’ length terms;
	 	 	 
	 	(e)	of
    cash for fair market value on commercial arm’s length terms and in the ordinary course of business of the disposing
    entity;
	 	 	 
	 	(f)	of
    obsolete or redundant vehicles, plant and equipment for cash;
	 	 	 
	 	(g)	of
    property (including by way of distribution or payment on account of any inter-Security Provider loan arrangement) from one
    Security Provider to another Security Provider;
	 	 	 
	 	(h)	expressly
    permitted under a Finance Document;


 


Permitted
Financial Accommodation means, in relation to a Security Provider, financial accommodation provided by that Security Provider
at a time when no Event of Default subsists:


 


	 	(a)	pursuant
    to the Finance Documents;
	 	 	 
	 	(b)	to
    another Security Provider;
	 	 	 
	 	(c)	to
    a Customer in the ordinary course of business on arms’ length commercial terms provided that the aggregate financial
    accommodation provided under this paragraph (c) at any time does not exceed NZ$500,000 or the NZ Dollar Equivalent thereof;
	 	 	 
	 	(d)	(provided
    no Event of Default is continuing at the relevant time) to another Group Member (which is not a Security Provider), provided
    the aggregate amount of all such Finance Debt does not exceed $100,000 at any time; or


 




    	13



     


    

 


	 	(e)	with
    the prior written consent of the Lender;



 





Permitted
Security means a security interest:


 


	 	(a)
    	created
    under a Finance Document;
	 	 	 
	 	(b)
    	in
    respect of which the Lender has given its prior written consent;
	 	 	 
	 	(c)
    	granted
    by one Security Provider in favour of another Security Provider;
	 	 	 
	 	(d)	in
    relation to personal property that is created or provided for by:


 


	 	(i)	a
    transfer of an account receivable or chattel paper;
	 	 	 
	 	(ii)	a
    lease for a term of more than one year; or
	 	 	 
	 	(iii)	a
    commercial consignment,


 


that
does not secure payment or performance of an obligation;


 


	 	(e)	arising
    out of any netting or set-off arrangement entered into by a Security Provider with another Security Provider for the purpose
    of netting debit and credit balances of Group Members, provided that such arrangement does not give rise to a security interest
    over property of a Security Provider in support of liabilities of a Group Member that is not a Security Provider.
	 	 	 
	 	(f)	that
    is a right of set-off arising in the ordinary course of the ordinary day-to-day business of an Obligor and that does not secure
    indebtedness;
	 	 	 
	 	(g)	that
    arises as a result of legal proceedings discharged within 30 days or otherwise being contested in good faith and not otherwise
    constituting an Event of Default;
	 	 	 
	 	(h)
    	that
    is expressly permitted under a Finance Document; and
	 	 	 
	 	(i)	arising
    under finance leases entered into in the ordinary course of business provided the value of the assets subject to lease at
    any time does not exceed $500,000;


 


Personal
Property means all of each Security Provider’s present and after-acquired personal property including all personal property
in which the Obligor has rights, whether now or in the future;


 


Potential
Event of Default means any event or circumstance that, with the giving of notice, lapse of time or fulfilment of another requirement,
would constitute an Event of Default;


 


PPSA
means the Australian PPSA and the NZ PPSA;


 


PPSR
has the meaning given to the term ‘register’ in the PPSA;


 


Quotation
Day means, in relation to any period for which an interest rate is to be determined, the first day of that period;


 


Real
Property means all of each Obligor’s present and after-acquired freehold and registered leasehold land, all estates
and interests in land and all buildings, structures and fixtures (including trade fixtures) for the time being on that land;


 




    	14



     


    

 


Receivables
means, on any date, the aggregate amount all trade debts payable to a Security Provider on that date (which for the purpose
of this definition means, debts incurred on arm’s length commercial terms arising in the normal course of the Guaranteeing
Group’s business) which are payable on demand or within 90 days from that date (without double counting), excluding:


 


	 	(a)	all
    amounts in arrears for greater than 90 days or that are uncollectable; and
	 	 	 
	 	(b)	all
    accounts receivable in respect of, and where the debtors are, related persons. Reference Bank Rate means:
	 	 	 
	 	(a)	the
    arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Lender at its request by the Reference
    Banks as the rate at which the relevant Reference Bank could borrow funds in the New Zealand bank bill market and for the
    relevant period were it do so by asking for and then accepting interbank offers for deposits in reasonable market size for
    that period; or
	 	 	 
	 	(b)	(if
    the rate referred to in paragraph (a) is not available), the arithmetic mean of the rates (rounded upwards to four decimal
    places) as supplied to the Lender at its request by the Reference Banks as the rate at which the relevant Reference Bank could
    raise funds in the wholesale market for NZ Dollars for the relevant period;


 


Reference
Banks means the principal offices in Auckland of the Lender, ANZ Bank New Zealand Limited, Westpac New Zealand Limited and
ASB Bank Limited, or such other entities as may be appointed by the Lender in consultation with the Borrower;


 


Relevant
Party means each Obligor and each other party to a Finance Document (other than the Lender);


 


Reporting
Date means:


 


	 	(a)	during
    the period commencing on the Commencement Date and ending on 31 December 2018, 31 March, 30 June, 30 September and 30 December
    in each year; and
	 	 	 
	 	(b)	thereafter,
    31 January, 30 April, 31 July, 31 October in each year;


 


Reporting
Period means, on any Reporting Date, the 12 month period ending on that Reporting Date;


 


Revolving
Asset means any Secured Property:


 


	 	(a)	which
    is:


 


	 	(i)	inventory;
	 	 	 
	 	(ii)	a
    negotiable instrument;
	 	 	 
	 	(iii)	machinery,
    plant, or equipment which is not inventory and has a value of less than $100,000 or its equivalent; or
	 	 	 
	 	(iv)	money
    (including money withdrawn or transferred from an account with a bank or other financial institution); and


 




    	15



     


    

 


	 	(b)	in
    relation to which no Control Event has occurred, subject to clause 4.4 of the General Security Deed (Aus);


 


Revolving
Credit Facility means the revolving credit facility of a maximum aggregate principal amount of the Revolving Credit Facility
Limit (as reduced from time to time in accordance with this Agreement), to be made available on the terms of this Agreement;


 


Revolving
Credit Facility Limit means NZ$20,000,000 (as reduced from time to time in accordance with this Agreement) to be made available
on the terms of this Agreement;


 


Rollover
Advance means one or more Drawings under the Revolving Credit Facility:


 


	 	(a)	made
    or to be made on the same day that a maturing Drawing under the Revolving Credit Facility is due to be repaid;
	 	 	 
	 	(b)	the
    aggregate amount of which is equal to or less than the amount of the maturing Drawing under the Revolving Credit Facility;
	 	 	 
	 	(c)	in
    the same currency as the maturing Drawing under the Revolving Credit Facility; and
	 	 	 
	 	(d)	made
    or to be made to the same Borrower for the purpose of refinancing that maturing Drawing under the Revolving Credit Facility;


 


RWT
Exemption Certificate has the meaning given to it in section YA 1 of the Income Tax Act;


 


RWT
Rules has the meaning given to it in section YA 1 of the Income Tax Act;


 


Screen
Rate means the New Zealand bank bill reference rate (bid) (rounded upwards to four decimal places) administered by the New
Zealand Financial Markets Association (or any other person who takes over the administration of that rate) for the relevant period
displayed on page BKBM of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate), or on
the appropriate page of such other information service which publishes that rate from time to time in place of Thomson Reuters.
If such page or service ceases to be available, the Lender may specify another page or service displaying the relevant rate after
consultation with the Borrower;


 


Secured
Property means all present and future right, title and interest (legal and equitable) of each Security Provider in and to
all Personal Property and all Other Property, including, without limitation:


 


	 	(a)	the
    Shares;
	 	 	 
	 	(b)	the
    Share Rights;
	 	 	 
	 	(c)	the
    Certificates; and
	 	 	 
	 	(d)	all
    proceeds of the Shares and Share Rights;


 


Security
Documents means each of the agreements set out in Schedule 3 (Security Documents) and each other security agreement, guarantee
or other agreement (present or future) expressed or intended to guarantee or secure the Obligors’ obligations under this
Agreement;


 




    	16



     


    

 


Security
Provider means a Borrower or Guarantor who has granted security over all its property to secure
all of the obligations of the Obligors under the Finance Documents;


 


Serial
Numbered Secured Property means:


 


	 	(a)	as
    at the date of this document, the Secured Property described in Schedule 9 to this Agreement;
	 	 	 
	 	(b)	any
    other Secured Property that must be described by serial number in a registration on the New Zealand personal property securities
    register or the PPSR; and
	 	 	 
	 	(c)	any
    other Secured Property that may be described by serial number in a registration on the PPSR;


 


Share
Rights means all securities, property and other rights (whether in or of the Issuer or another person) to which a holder of
Shares is entitled or offered, including any distribution, option or property issued by way of a rights or bonus issue;


 


Shares
means all shares of an Issuer issued to or owned by an


 


Obligor;
Specified Time means 10.45am on the Quotation Day;


 


Supplemental
Deed means a supplemental deed:


 


	 	(a)	in
    respect of a New Borrower, in the form of Schedule 5 (Form of Supplemental Deed for New Borrower); and
	 	 	 
	 	(b)	in
    respect of a New Guarantor, in the form of Schedule 6 (Form of Supplemental Deed for New Guarantor);


 


Termination
Date means the date that is twelve months from the Effective Date;


 


Total
Interest Cost means, for a Group for a period, the gross amount of all interest and financing costs incurred by the Group
over that period, calculated on a consolidated basis in accordance with Accounting Principles, after taking into account all realised
losses and profits on foreign currency borrowings and financing transactions (other than amounts transferred to foreign currency
transaction reserves), including:


 


	 	(a)	the
    amount of all discounts and similar allowances on the issue or disposal of debt instruments;
	 	 	 
	 	(b)	all
    finance charges under finance leases and hire purchase agreements;
	 	 	 
	 	(c)	the
    amount of all dividends paid or payable on redeemable shares issued by any member of the Group; and
	 	 	 
	 	(d)	all
    other expenses and amounts that are required by Accounting Principles to be treated as interest or financing costs,


 


but
excluding interest and financing costs on money borrowed or raised to acquire, develop or improve fixed assets, to the extent
that they have been capitalised in the accounts of the Group and excluding:


 




    	17



     


    

 


	 	(e)	any
    realised costs of closing out a Treasury Transaction that are incurred in connection with the acquisition or disposal of a
    subsidiary or business after the date of this agreement;
	 	 	 
	 	(f)	any
    dividends paid on redeemable shares and any other interest and financing costs paid by one member of the Group to another
    member of the Group; and
	 	 	 
	 	(g)	any
    non-cash items included in interest in the most recent financial statements of the Group;


 


Transactional
Banking Document means any document entered into from time to time between an Obligor and the Lender under which one or more
Transactional Banking Facilities are made available to any member of the Guaranteeing Group;


 


Transactional
Banking Facilities means any day to day banking facilities or arrangements made available to a member of the Guaranteeing
Group by the Lender in connection with the ordinary course of trade of that member of the Guaranteeing Group;


 


Treasury
Transaction means any foreign exchange agreement, currency or interest purchase, interest rate swap, cap or collar agreement,
currency swap agreement, currency and interest rate future or option contract, commodity swap, option, cap, collar, floor or swaption
or other similar agreement (whether entered into before, on, or after the date of this Agreement);


 


Trust
means the Pleasure State Unit Trust ABN 20 730 241 229;


 


Trust
Deed means the trust deed dated 13 May 2004 constituting the Trust, as varied by the deed polls for variation of trust dated
12 August 2011, 8 April 2013, and includes each document approved by the Lender for the purposes of this definition which amends,
varies or supplements that trust deed;


 


Trustee
means Pleasure State Pty Limited ACN 108 588 076, in its capacity as trustee of the Trust;


 


UK
Obligors means each Obligor incorporated in England and Wales;


 


US
Dollars and USD refer to the lawful currency of the United States of


 


America;
US Tax Obligor means:


 


	 	(a)	a
    Borrower which is resident for tax purposes in the United States of America; or
	 	 	 
	 	(b)	an
    Obligor some or all of whose payments under the Finance Documents are from sources within the United States of America for
    US federal income tax purposes; and


 


Working
Capital Debt means, on any date, the Amount Outstanding under the Revolving Credit Facility as at that date.


 





	1.2	Construction




 


In
this Agreement, unless the context otherwise requires:


 


an
agreement includes a contract, deed, licence, undertaking and other document or legally enforceable arrangement (in each
case, whether or not in writing, present and future), and includes that document as amended, assigned, novated or substituted
from time to time;


 




    	18



     


    

 


compromise
includes a compromise as defined in section 227 of the Companies Act 1993;


 


a
consent includes an approval, authorisation, exemption, filing, licence, order, permit, recording or registration;


 


one
person being controlled by another means that the other person (whether directly or indirectly and whether by the ownership
of share capital, the possession of voting power, contract or otherwise):


 


	 	(a)	has
    the power to appoint and/or remove the majority of the members of the governing body of that person;
	 	 	 
	 	(b)	otherwise
    controls or has the power to control the affairs and policies of that person; or
	 	 	 
	 	(c)	is
    in a position to derive the whole or a substantial part of the benefit of that person;


 


costs
incurred by a person include all commissions, charges, losses, expenses (including legal fees on a solicitor and own client
basis) and taxes incurred by that person;


 


a
directive includes a directive, regulation and requirement (in each case, whether or not having the force of law but, if
not having the force of law, the compliance with which is in accordance with the general practice of persons to whom the directive
is addressed);


 


disposing
of property includes:


 


	 	(a)	selling,
    assigning, novating, leasing, lending, exchanging, transferring, granting a concession, surrendering, licensing, reserving,
    waiving, compromising, releasing, dealing, subordinating, varying the terms of, parting with possession of, granting an option,
    right or interest in respect of, or otherwise dealing with that property;
	 	 	 
	 	(b)	the
    payment of money (including a distribution by way of dividend); and
	 	 	 
	 	(c)	an
    agreement for any of these, but 


 


excludes
the creation of a security interest;


 


distribution
is defined in section 2 of the Companies Act 1993, and includes any reduction of capital (including a redemption by a company
of its own shares), any acquisition by a company of any share in itself or in its holding company, and any financial assistance
provided by a company to enable another person to acquire any such share;


 


financial
statements has the meaning specified in section 6 of the Financial Reporting Act 2013;


 


group
financial statements has the meaning specified in section 7 of the Financial Reporting Act 2013;


 


a
guarantee includes an indemnity, letter of credit, letter of comfort, suretyship and other agreement, the economic effect
of which is to provide security, or otherwise assume responsibility, for the indebtedness or obligations of another person;


 


a
holding company of a person includes a holding company as defined in section 5 of the Companies Act 1993 and section 9
of the Australian Corporations Act;


 


indebtedness
includes any obligation relating to the payment of money:


 




    	19



     


    

 


	 	(a)	whether
    present or future, actual or contingent;
	 	 	 
	 	(b)	whether
    incurred alone, jointly, severally, or jointly and severally and as principal, surety or otherwise;
	 	 	 
	 	(c)	whether
    due to the lender alone, or with another person, and whether the Lender is entitled for its own account or for the account
    of another person;
	 	 	 
	 	(d)	whether
    arising from a banker and customer relationship or another relationship;
	 	 	 
	 	(e)
    	whether
    originally contemplated by the debtor or the Lender or not;
	 	 	 
	 	(f)	whether
    the Lender is the original person the amount was owed to, or an assignee and, if the Lender is an assignee:


 


	 	(i)	whether
    or not the debtor consented to, or was aware of the assignment; and
	 	 	 
	 	(ii)	regardless
    of when the assignment occurred; and


 


	 	(g)	if
    determined pursuant to any award, order, judgment or decree against the debtor, whether or not the debtor was party to the
    court proceedings, arbitration or other dispute resolution process in which that award, order, judgment or decree was made,


 


including
any such obligation arising under derivative or similar products;


 


the
liquidation of a person includes the dissolution, administration, winding-up and bankruptcy of that person and any analogous
procedure under the law of any jurisdiction in which that person is incorporated, domiciled, carries on business or has property;


 


loss
excludes loss of profit and loss of margin;


 


something
having a material adverse effect is a reference to it having, in the reasonable opinion of the Lender, a material adverse
effect on:


 


	 	(a)	the
    consolidated financial condition or operations of the Group; or
	 	 	 
	 	(b)	the
    Group’s ability to comply with any of its material obligations under any Finance Document; or
	 	 	 
	 	(c)	the
    validity or enforceability of, or the effectiveness or ranking of any security interest created under or in connection with
    a Security Document or the rights and remedies of the Lender under any Finance Document,


 


and
references to material adverse change shall be construed accordingly;


 


obligations
include covenants, conditions, stipulations, representations, warranties, guarantees, undertakings, assurances and agreements;


 


a
person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a state,
an agency of a state and any other entity (in each case, whether or not having separate legal personality);


 


property
includes:


 




    	20



     


    

 


	 	(a)	anything
    that is capable of being owned, whether it is real or personal property, and whether it is tangible or intangible; and
	 	 	 
	 	(b)	the
    whole and any part of the relevant person’s business, assets (including leased assets), undertaking, revenues, benefits
    and rights,


 


(in
each case, present and future), and reference to any property includes any legal or equitable interest in it;


 


related
person means:


 


	 	(a)	any
    related company (as defined in section 2(3) of the Companies Act 1993, but as if the word “subsidiary” in that
    section had the same meaning as “subsidiary” in this Agreement) of an Obligor;
	 	 	 
	 	(b)	in
    relation to any Obligor incorporated under the laws of Australia, any related body corporate (as defined in section 9 of the
    Australian Corporations Act) of that Obligor;
	 	 	 
	 	(c)	any
    person that is treated as an associated company of an Obligor in terms of Accounting Principles;
	 	 	 
	 	(d)	any
    person who beneficially owns (or together with its related persons, determined on the same basis as set out in paragraphs
    (a), (b) and (c) above, beneficially owns) whether directly or indirectly, 20% or more of the equity share capital in the
    Borrower;
	 	 	 
	 	(e)	any
    related entity (determined on the same basis as set out in paragraphs (a), (b) and (c) above) of any person referred to in
    paragraph (d) above; and
	 	 	 
	 	(f)	the
    beneficiary of a trust under which a trustee of the trust is a related entity in terms of paragraphs (a) to (e) above;


 


rights
includes authorities, consents, discretions, remedies, powers and causes of


 


action;
a security interest includes:


 


	 	(a)	a
    mortgage, pledge, charge, lien, hypothecation, encumbrance, deferred purchase, title retention, finance lease, contractual
    right of set-off, flawed asset arrangement, sale-and-repurchase and sale-and-leaseback arrangement, order and other arrangement
    of any kind, the economic effect of which is to secure a creditor;
	 	 	 
	 	(b)	a
    “security interest” as defined in section 17(1)(a) of the PPSA in respect of which the relevant person is the
    debtor; and
	 	 	 
	 	(c)	a
    “security interest” as defined in sections 12(1) or (2) of the Australian PPSA;
	 	 	 
	 	 	a
    subsidiary of a person includes:
	 	 	 
	 	(a)	a
    subsidiary as defined in section 5 of the Companies Act 1993 (as if the term “company” in those sections includes
    entities incorporated in a jurisdiction other than New Zealand); and
	 	 	 
	 	(b)	an
    “in substance” subsidiary and any other person treated as a subsidiary under Accounting Principles;



 



    	21



     


    

 


	 	(c)	a
    person controlled (whether directly or indirectly and whether by ownership of share capital, possession of voting power, contract
    or otherwise) by that person;
	 	 	 
	 	(d)	in
    relation to an Obligor incorporated under the laws of Australia, a subsidiary within the meaning of Part 1.2 of Division 6
    of the Australian Corporations Act, but as if the body corporate includes any entity for the purpose of which any beneficial
    interest or unit in a trust will be deemed to be shares; and
	 	 	 
	 	(e)	in
    relation to Pleasure State (HK) Limited:


 


	 	(i)	a
    subsidiary within the meaning of section 15 of the Companies Ordinance (Cap.622) of Hong Kong; and
	 	 	 
	 	(ii)	any
    company which would be a subsidiary within the meaning of section 15 of the Companies Ordinance (Cap.622) of Hong Kong but
    for any Security subsisting over the shares in that company from time to time,


 


but
on the basis that a person shall be treated as a member of a company if any shares in that company are held by that person’s
nominee or any other person acting on that person’s behalf;


 


	 	(f)	in
    relation to a UK Obligor:


 


	 	(i)	a
    subsidiary within the meaning of section 1159 of the Companies Act 2006 (UK); and
	 	 	 
	 	(ii)	any
    company which would be a subsidiary within the meaning of section 1159 of the Companies Act 2006 (UK) but for any security
    interest subsisting over the shares in that company from time to time,


 


but
on the basis that a person shall be treated as a member of a company if any shares in that company are held by that person’s
nominee or any other person acting on that person’s behalf;


 


tax(es)
includes any tax, levy, impost, stamp or other duty and any other charge, deduction or withholding of a similar nature (including
any penalty or interest payable in connection with any failure to pay, or any delay in paying, any of the same);


 


writing
includes a facsimile transmission, an email communication and any means of reproducing words in a tangible and permanently
visible form;


 


a
reference to a party, clause, schedule or annexure is a reference to a party to, clause of, schedule
to or annexure to, this Agreement;


 


the
word “including”, when introducing an example, does not limit the meaning of the words to which the example
relates;


 


an
Event of Default, Event of Review or Potential Event of Default is continuing until it has been waived in writing by, or
remedied to the satisfaction of, the Lender;


 


an
agreement, representation or undertaking given by an Obligor in favour of two or more persons is for the benefit of them jointly
and each of them severally;


 


a
gender includes each other gender;


 




    	22



     


    

 


the
singular includes the plural and vice versa;


 


where
a word or phrase is defined, its other grammatical forms have a corresponding meaning;


 


any
legislation includes a modification and re-enactment of, legislation enacted in substitution for, and a regulation, order-in-council
and other instrument from time to time issued or made under, that legislation; and


 


a
party to this Agreement or another agreement includes its successors and its permitted assignees, novatees and transferees.


 


Headings
and the table of contents are to be ignored in construing this Agreement.


 


Unless
the contrary intention appears, where an Obligor holds any property as trustee for any trust (including where the trust has not
been disclosed to the Lender), the Finance Documents are binding on the relevant Obligor in its personal capacity and in its capacity
as trustee of the relevant trust and references to the Obligor’s assets, liabilities, acts or omissions include any assets,
liabilities, acts or omissions of the Obligor as trustee of the relevant trust.


 


	1.3	Joint
    and several liability


 


The
liability of, and obligations on, each Obligor under this Agreement are joint and several.


 


Any
New Borrower is jointly and severally liable with any existing Borrower under this Agreement. References in this Agreement to
“Borrower” are to each Borrower individually, and to all Borrowers together.


 


Any
New Guarantor is jointly and severally liable with any existing Guarantor under this Agreement. References in this Agreement to
“Guarantor” are to each Guarantor individually, and to all Guarantors together.


 


	1.4	PPSA


 


The
terms “collateral” and “debtor” in the definition of “security interest” above have the meanings
given to them in the PPSA, and where it relates to an Obligor incorporated under the laws of Australia or any of its subsidiaries
incorporated under the laws of Australia, a reference to these terms has the meaning given in the Australian PPSA.


 


	2.	Facilities


 


	2.1	Availability


 


The
Lender agrees to make each Facility available to the Borrower on the terms of this Agreement and in the manner set out below:


 


	Facility	 	Manner
    of Use
	Revolving
    Credit Facility	 	By
    making Drawings denominated in NZ$ or an Optional Currency.
	Instrument
    Facility	 	By
    requesting the Lender to issue Instruments (denominated in NZ$ or an Optional Currency) during the relevant Availability Period.


 




    	23



     


    

 


	2.2	Purpose


 


The
Borrower will use the net proceeds of any Accommodation for the purposes specified below:


 


	Facility	 	Purpose
	Revolving
    Credit Facility	 	To
    refinance the Borrower’s existing (as at the Effective Date) customised average rate loan facilities and stock and debtor
    finance facilities with the Lender and for general commercial purposes of the Group.
	Instrument
    Facility	 	To
    fund the rental bonding requirements of the Guaranteeing Group.


 


	2.3	Conditions
    to any Accommodation


 


The
Lender will not be obliged to make any Accommodation available under a Facility unless:


 


	 	(a)
    	Conditions
    precedent


 


the
Effective Date has occurred under and as defined in the Deed of Amendment and Restatement (May 2018).;


 


	 	(b)
    	No
    Event of Default


 


	 	(i)	no
    Event of Default; and
	 	 	 
	 	(ii)	(unless
    the Accommodation is a Rollover Advance) no Potential Event of Default,


 


has
occurred, or will occur, as a result of the making available of that Accommodation;


 


	 	(c)
    	Representations


 


the
representations made in, or in connection with, the Finance Documents are true, accurate and complied with in all material respects
on the Drawing Date, as if repeated on that date by reference to the facts and circumstances then existing;


 


	 	(d)
    	Unusual
    circumstances


 


none
of the events contemplated by clause 17 have occurred, or are reasonably likely to occur, on the Drawing Date.


 





	2.4
    	Drawdown




 


The
Lender will make an Advance to the Borrower on any Business Day nominated by the Borrower during the relevant Availability Period
if:


 




    	24



     


    

 


	 	(a)
    	Drawing
    Notice


 


the
Lender has received from the Borrower a Drawing Notice not later than 2.00 pm on the Business Day before the proposed Drawing
Date, which notice will be irrevocable and must specify:


 


	 	(i)	the
    Facility from which the Advance is requested;
	 	 	 
	 	(ii)	the
    requested amount of the Advance, which must be an integral amount of NZ$100,000;
	 	 	 
	 	(iii)	the
    proposed Drawing Date;
	 	 	 
	 	(iv)	the
    currency of that Advance, which must be NZ$ or an Optional Currency;
	 	 	 
	 	(v)	the
    requested length of the Interest Period applicable to the Advance.


 


	 	(b)
    	Available
    Facility


 


	 	(i)	the
    NZ Dollar Equivalent of the amount of that Advance does not exceed the applicable Available Facility; and
	 	 	 
	 	(ii)	(if
    the currency of an Advance is an Optional Currency) the currency is readily available in the amount required and freely convertible
    into NZ Dollars in the wholesale market for that currency on the Quotation Date and the Drawing Date,


 


failing
which the Lender may discontinue the requested drawdown of the Advance, or make the requested Advance and waive any of these conditions.


 


	2.5	Application
    on re-drawing


 


Subject
to compliance with clause 2.4, all or part of a Drawing may, if the Borrower so requests in the relevant Drawing Notice, be applied
by the Lender in or towards repayment of a Drawing to be repaid on that Drawing Date, so that only the net amount is payable on
that day. Nothing in this clause affects the obligation of the Borrower to make timely repayment of a Drawing in full if such
application is not made.


 


	2.6	Right
    of Review


 


	 	(a)	The
    Lender may review the Facilities at any time. This will generally be done annually, but may be done at other times.
	 	 	 
	 	(b)	The
    Borrower acknowledges and agrees that the Lender in its absolute discretion may, by notice in writing to the Borrower, vary
    the percentage rate appearing in the definition of Margin.
	 	 	 
	 	(c)	All
    variations to the Margin shall be effective and become binding upon the parties fourteen days (or such longer period as advised
    by the Lender) after the date of the notice notifying such change.


 




    	25



     


    

 


	3.	[Intentionally
    deleted]
	 	 
	4.	[Intentionally
    deleted]
	 	 
	5.	[Intentionally
    deleted]
	 	 
	6.	[Intentionally
    deleted]
	 	 
	7.	[Intentionally
    deleted]
	 	 
	8.	Revolving
    Credit Facility


 





	8.1	Availability


 


The
Lender agrees to make the Revolving Credit Facility available to the Borrower on the terms of this Agreement. The Revolving Credit
Facility will be made available in NZ$ or an Optional Currency and by Drawings on any Business Day during the Availability Period
of the Revolving Credit Facility.


 


	8.2	Interest
    Rate


 


The
Borrower shall pay interest on each Drawing for each Interest Period at the rate per annum determined by the Lender to be:


 


	 	(a)	in
    respect of a Drawing in NZ$, the sum of:


 


	 	(i)	BKBM
    for that Interest Period;
	 	 	 
	 	(ii)	the
    BNZ Liquidity Amount;
	 	 	 
	 	(iii)	in
    respect of a Drawing in NZ$ with an Interest Period of one or two months, or any other period that is greater than one month
    but less than three months, the Business Basis Premium for that Interest Period; and
	 	 	 
	 	(iv)	the
    Margin;


 


	 	(b)	in
    respect of a Drawing in an Optional Currency, the percentage rate per annum (rounded upwards to four decimal places) which
    is the sum of:


 


	 	(i)	the
    Margin; and
	 	 	 
	 	(ii)	the
    rate of interest notified to the Borrower by the Lender to be that which expresses as a percentage rate per annum, the cost
    to the Lender of funding that Drawing from whatever source it may reasonably select, 


 


subject
always to clause 9.


 




    	26



     


    

 


	8.3	Interest
    Payment


 


On
the last day of each Interest Period for a Drawing under the Revolving Credit Facility (or, in the case of an Interest Period
longer than three months, on each day during that period that falls at three monthly intervals from the first day of that period),
the Borrower shall pay to the Lender all unpaid interest accrued on each Drawing during the relevant Interest Period (or, in the
case of an Interest Period longer than three months, during the relevant three month period) at the applicable rate of interest
for that Interest Period. The Lender will notify the Borrower of each determination of the applicable rate of interest and of
each amount of interest payable under this clause but failure to do so will not affect the obligation of the Borrower to pay interest.


 


	8.4	Interest
    Periods


 


Each
Interest Period for a Drawing will be a period commencing on the applicable Drawing Date of one, two or three months as the Borrower
may nominate in the relevant Drawing Notice (or such other period as the Lender may agree in writing) except that:


 


	 	(a)	an
    Interest Period that commences on a day for which there is no numerically corresponding day in the month that Interest Period
    expires will end on the last Business Day of that month;
	 	 	 
	 	(b)	if
    an Interest Period would otherwise end on a day that is not a Business Day, that Interest Period will be extended to end on
    the next succeeding Business Day, unless the result of that extension would be to carry the Interest Period over into the
    next calendar month, in which case the relevant Interest Period will expire on the previous Business Day;
	 	 	 
	 	(c)	no
    Interest Period will extend beyond the Termination Date;
	 	 	 
	 	(d)	if
    the Borrower fails to nominate the length of an Interest Period, the Interest Period will be of three month’s duration,
    


 


and
if (a) or (b) apply, the next Interest Period will end on the day it would have ended if the previous Interest Period had not
been extended or shortened.


 


	8.5	Prepayment


 


The
Borrower may prepay a Drawing in full (or any part of it being not less than NZ$100,000 and that is a whole multiple of NZ$100,000)
on the Borrower giving the Lender not less than three Business Days’ notice of its intention to do so, specifying the date
and the amount of the prepayment. That notice will be irrevocable and will bind the Borrower to make the prepayment specified
in it. On the date of prepayment, the Borrower shall prepay the relevant Drawing (or part of it) together with accrued interest
on that Drawing (or part of it) and any amount due under clause 18 (Indemnities).


 


	8.6	Redrawing


 


Amounts
prepaid under clause 8.5 will be available for re-borrowing.


 


	8.7	Repayment


 


The
Borrower will repay each Drawing on the last day of its Interest Period and will repay all outstanding Drawings on the Termination
Date, together with all interest and costs payable under the Finance Documents.


 




    	27



     


    

 





	8.8	Currency
    equalisation


 


	 	(a)	On
    the last day of each Interest Period the Lender shall calculate the NZ Dollar Equivalent of the Amount Outstanding under the
    each Facility by reference to the Lender’s spot rate of exchange on that date.
	 	 	 
	 	(b)	If
    at any time the aggregate NZ Dollar Equivalent of the Amount Outstanding under that Facility as calculated under paragraph
    (a) above (the Aggregate NZ Dollar Amount) exceeds 105 per cent of Facility Limit for that Facility, then the Borrower
    shall, within 5 Business Days of written notice from the Lender, ensure that an amount equal to the difference between the
    Aggregate NZ Dollar Amount and the Facility Limit for that Facility is applied in prepayment of the Amount Outstanding under
    that Facility. Any amounts prepaid in accordance with this clause 8.8 will not be available for redrawing.


 


	9.	Changes
    to the calculation of interest


 





	9.1	Unavailability
    of Screen Rate


 


	 	(a)	Interpolated
    Screen Rate: If no Screen Rate is available for the Interest Period of a Drawing, the applicable BKBM shall be the Interpolated
    Screen Rate for a period equal in length to the Interest Period of the relevant Drawing, except where the Interest Period
    is less than one month, in which case there shall be no BKBM for that Drawing and clause 9.5 shall apply to that Drawing for
    that Interest Period.
	 	 	 
	 	(b)	Reference
    Bank Rate: If no Screen Rate is available for the Interest Period of a Drawing (not being a Drawing with an Interest Period
    less than one month), and it is not possible to calculate the Interpolated Screen Rate, the applicable BKBM shall be the Reference
    Bank Rate as of the Specified Time for a period equal in length to the Interest Period of that Drawing.
	 	 	 
	 	(c)	Cost
    of funds: If paragraph (b) above applies but no Reference Bank Rate is available for the relevant Interest Period, there
    shall be no BKBM for that Drawing and clause 9.5 shall apply to that Drawing for that Interest Period.


 


	9.2	Calculation
    of Reference Bank Rate


 


	 	(a)	Subject
    to paragraph (b) below, if BKBM is to be determined on the basis of a Reference Bank Rate but a Reference Bank does not supply
    a quotation by the Specified Time, the Reference Bank Rate shall be calculated on the basis of the quotations of the remaining
    Reference Banks.
	 	 	 
	 	(b)	If
    at or about 12.00pm on the Quotation Day, none or only one of the Reference Banks supplies a quotation, there shall be no
    Reference Bank Rate for that Interest Period and clause 9.45 shall apply to that Drawing for that Interest Period.


 


	9.3	Interpolated
    BBP Rate


 


If
the Business Basis Premium is to be applied to a Drawing under clause 8.2 and no BBP Rate is available for the relevant Interest
Period, the applicable Business Basis Premium shall be the Interpolated BBP Rate for a period equal in length to the Interest
Period of the relevant Drawing.


 




    	28



     


    

 


	9.4	Market
    disruption


 


If
before 5.00pm on the Business Day after the Quotation Day for the relevant Interest Period, the Lender notifies the Borrower that
as a result of market circumstances not limited to it (whether or not those circumstances, or their effect on the Lender’s
cost of funds, subsisted on the date of this Agreement), the cost to it of funding the Drawing (from whatever source it may reasonably
select) would be in excess of BKBM plus any applicable Business Basis Premium, then clause 9.5 shall apply to the Drawing for
the relevant Interest Period.


 





	9.5	Cost
    of funds




 


	 	(a)	If
    this clause applies, the rate of interest for the relevant Drawing for the relevant Interest Period shall be the percentage
    rate per annum (rounded upwards to four decimal places) which is the sum of:


 


	 	(i)	the
    Margin; and
	 	 	 
	 	(ii)	the
    rate of interest notified to the Borrower by the Lender to be that which expresses as a percentage rate per annum, the cost
    to it of funding that Drawing from whatever source it may reasonably select.


 


That
rate is to be notified as soon as practicable and in any event before interest is due to be paid in respect of that Interest Period.


 


	 	(b)	If
    this clause 9.5 applies and the Lender or the Borrower so requires, the Lender and the Borrower shall enter into negotiations
    (for a period of not more than 30 days) with a view to agreeing a substitute basis for determining the rate of interest.
	 	 	 
	 	(c)	Any
    alternative basis agreed pursuant to paragraph (b) above shall, with the prior consent of the Lender and the Borrower, be
    binding on all parties.


 


	9.6	Notice


 


The
Lender shall promptly notify the Borrower if there is a market disruption event under clause 9.4.


 


	9.7	Break
    Costs


 


	 	(a)	The
    Borrower shall, within three Business Days of demand by the Lender, pay to the Lender its Break Costs attributable to all
    or any part of a Drawing being paid by that Borrower on a day other than the last day of an Interest Period for that Drawing.
	 	 	 
	 	(b)	The
    Lender shall, as soon as reasonably practicable after a demand by the Borrower, provide a certificate confirming the amount
    of its Break Costs for any Interest Period in which they accrue.


 


	10.	Instrument
    Facility
	 	 
	10.1	Availability


 


The
Lender agrees to make the Instrument Facility available to the Borrower on the terms of this Agreement. The Instrument Facility
will be made available by the issuing of Instruments.


 




    	29



     


    

 





	10.2	Conditions
    precedent to each Instrument


 


The
Lender will make an Instrument available in accordance with clause 10.3, on any Business Day during the Availability Period nominated
by the Borrower if:


 


	 	(a)	Available
    Facility


 


the
amount of the Instrument, when aggregated with all of the other outstanding Instruments (if any), intended to be issued on the
same day, would not cause the applicable Available Facility to be exceeded on the Drawing Date;


 


	 	(b)	Limits
    on Instruments


 


no
more than 20 Instruments being outstanding at any one time.


 


	10.3	Instruments


 


Subject
to compliance with clause 10.2, the Lender shall issue an Instrument in NZ$ or an Optional Currency on account of the Borrower
if no later than 10.30 a.m. on the second Business Day before the proposed Drawdown Date the Lender has received from the Borrower
a duly completed Drawing Notice for that Instrument which shall be irrevocable and which shall specify:


 


	 	(a)	the
    type of Instrument (attaching a copy of the agreed form of the Instrument pursuant to clause 10.4(a));
	 	 	 
	 	(b)	the
    Drawing Date for that Instrument;
	 	 	 
	 	(c)	the
    Maximum Liability under that Instrument; and
	 	 	 
	 	(d)	the
    Beneficiary of that Instrument.


 


	10.4	Form
    of Instruments


 


Each
Instrument issued by the Lender must:


 


	 	(a)	be
    in the form agreed by the Borrower and the Lender;
	 	 	 
	 	(b)	contain
    a “pay and walk” clause, if required by the Lender;
	 	 	 
	 	(c)	have
    an Expiry Date which is not later than the Termination Date;
	 	 	 
	 	(d)	be
    denominated in NZ$ or an Optional Currency; and
	 	 	 
	 	(e)	be
    payable on a Business Day and have a term no less than one month from the date of issue of that Instrument.


 


	10.5	Authority
    to make payments


 


The
Borrower irrevocably authorises the Lender to pay immediately any amount demanded at any time under an Instrument. The Lender:


 




    	30



     


    

 


	 	(a)	need
    not first refer to any member of the Consolidated Group or obtain its authority for the payment; and
	 	 	 
	 	(b)	need
    not enquire whether the demand has been properly made (provided that the demand has been made in the prescribed form, if any);
    and
	 	 	 
	 	(c)	may
    meet any demand even though a member of the Consolidated Group disputes the validity of the demand.


 


	10.6	Borrower’s
    undertaking to reimburse


 


The
Borrower may reimburse, repay or otherwise discharge the amounts owing or contingently owing in respect of any issued Instrument
by:


 


	 	(a)	providing
    to the Lender, cash collateral (on terms satisfactory to the Lender) in an amount not less than the Maximum Liability of the
    issued Instrument; or
	 	 	 
	 	(b)	cancelling
    that Instrument by procuring the Beneficiary under that Instrument to return the original to the Lender.


 


	10.7	Expiring
    Instruments


 


The
Instrument Facility Limit is not reduced when an Instrument expires, is repaid or is otherwise discharged.


 


	10.8	Indemnity


 


The
Borrower unconditionally and irrevocably indemnifies the Lender against any liability or loss arising from, and any costs incurred
in connection with, the Lender making payment pursuant to or receiving a claim in respect of an Instrument. The Borrower agrees
to pay amounts due under this indemnity on demand from the Lender. For the avoidance of doubt, any payment made under this clause
shall be paid in the same currency as the Instrument in respect of which the payment was made.


 


	10.9	Rights
    are protected


 


The
rights of the Lender under the Instrument Facility in respect of an Instrument and the Borrower’s obligations with respect
to an Instrument are not affected by anything (other than in the case of fraud, gross negligence or wilful misconduct on the part
of the Lender) that might otherwise affect them under law or otherwise, including:


 


	 	(a)	any
    inaccuracy, insufficiency, forgery or alteration in any certificate, Instrument or other document which purports to be made,
    issued or delivered under this Agreement or under any Instrument;
	 	 	 
	 	(b)	the
    fact that the Lender releases a member of the Consolidated Group (or another person) or gives them a concession, such as more
    time to pay, or compounds or compromises with them;
	 	 	 
	 	(c)	laches,
    acquiescence or delay on the part of the Lender or another person;
	 	 	 
	 	(d)	any
    variation or novation of a right of the Lender or another person; or


 




    	31



     


    

 


	 	(e)	the
    fact that the obligations of any person other than a member of the Consolidated Group may not be enforceable.


 


	10.10
    	Prohibitions
    on issue of certain Instruments


 


The
Lender is not obliged to issue an Instrument in respect of any Beneficiary if the issue would cause a breach by the Lender of
any applicable law.


 


	10.11
    	Redrawing


 


Subject
to compliance with the provisions of this Agreement relating to drawdown, amounts under the Instrument Facility which are repaid
or prepaid in accordance with this Agreement or amounts available as a result of the cancellation or release of an Instrument
shall be available for drawing or redrawing during the Availability Period for the Instrument Facility.


 


	11.	Ancillary
    Facilities
	 	 
	11.1	Availability


 


The
Lender may, at its option, agree to make additional facilities available to the Obligors.


 


	11.2
    	Documentation


 


Any
ancillary facility will be made on the terms specified in a separate agreement to be entered into between the Lender and the relevant
Obligor(s) at the relevant time, and will be subject to the terms of that agreement.


 


	12.	Repayment


 


The
Borrower will repay all outstanding Drawings on the Termination Date, in each case, together with all interest and costs payable
under the Finance Documents.


 


	13.	Illegality


 


If,
at any time, the Lender determines that it is, or is likely to be, or will become, unlawful or contrary to any law, treaty or
directive of any agency of state or other regulatory, monetary or accounting authority to make, fund or allow to remain outstanding
all or part of the Facility or any Accommodation, or to charge or receive interest at any applicable rate, or to comply with any
of its obligations or exercise any of its rights under a Finance Document, then, on the Lender notifying the Borrower accordingly:


 


	 	(a)	the
    obligation of the Lender to make the Facility or any Accommodation available will be cancelled; and
	 	 	 
	 	(b)	where
    the Facility or part of it has been made available, the Borrower will repay the Amount Outstanding either immediately or,
    if permitted by law, treaty or directive, on the expiry of each current Interest Period (if applicable) relating to it.


 




    	32



     


    

 


	14.	Default
    interest


 


If
the Borrower does not pay, when due, an amount payable by it under a Finance Document then, without prejudice to its other obligations,
the Borrower will pay interest on that overdue amount (including interest payable under this clause) calculated from its due date
to the date of its receipt by the Lender (after as well as before judgment), compounded and payable at intervals selected by the
Lender at its discretion (each a Default Interest Period). This obligation to pay default interest arises without the need
for a notice or demand. The rate of default interest (the Default Rate) will be the aggregate of:


 


	 	(a)	The
    rate of interest that would otherwise be payable pursuant to clause 8.2; and
	 	 	 
	 	(b)	2
    percent per annum,


 


on
the first day of the relevant Default Interest Period.


 


	15.	Fees
	 	 
	15.1	Establishment
    fee


 


[Intentionally
deleted]


 


	15.2	Line
    fee


 


	 	(a)	The
    Borrower will pay to the Lender a line fee at the rate of 1.00 per cent per annum of the Revolving Credit Facility Limit.
	 	 	 
	 	(b)	The
    Borrower will pay to the Lender a line fee at the rate of 0.75 per cent per annum of the Instrument Facility Limit.
	 	 	 
	 	(c)	Each
    such line fee is payable quarterly in advance from the Effective Date to the later of the Termination Date and the date on
    which the Amount Outstanding is received by the Lender.


 


	15.3	Issuance
    fee


 


	 	(a)	The
    Borrowers shall pay to the Lender an issuance fee in an amount equal to 1.00% of the Maximum Liability of the Lender per annum
    under each Instrument as specified by the Lender in accordance with its current trade terms relating to such Instruments.
	 	 	 
	 	(b)	Such
    issuance fees shall be payable quarterly in advance (starting on the date of issue of that Instrument) until such time as
    the relevant Instrument is formally cancelled by the Lender (which will be deemed to occur after the Instrument expires).
    These issuance fees are subject to review at the Lender’s sole discretion.
	 	 	 
	 	(c)	Other
    fees may be payable in respect of Instruments provided by the Lender as specified by the Lender in accordance with its current
    trade terms relating to such Instruments or as otherwise agreed with a Borrower. These fees are subject to review at the Lender’s
    sole discretion.


 




    	33



     


    

 





	15.4	No
    refund


 


No
fee payable by the Borrower is refundable in any circumstance, even where payable in advance.


 


	16.	Taxes
	 	 
	16.1	Gross
    up


 


If:


 


	 	(a)	an
    Obligor or a person on its behalf is required by law to make a deduction or withholding on account of tax from any amount
    paid or payable by it under a Finance Document; or
	 	 	 
	 	(b)	the
    Lender or a person on its behalf is required by law to make any payment for or on account of tax (other than tax on overall
    net income of the Lender) on or in relation to any amount received or receivable by it under a Finance Document,


 


then
the relevant Obligor will:


 


	 	(c)	ensure
    that any such deduction or withholding does not exceed the legal minimum and shall pay the amount required to be deducted
    or withheld to the relevant authority before the date any penalty begins to accrue; and
	 	 	 
	 	(d)	increase
    the actual amount paid to the Lender to the extent necessary to ensure that after any such deduction, withholding or payment
    is made, the Lender actually receives and retains on the due date (free from any liability in respect of any such deduction,
    withholding or payment, and ignoring any amount that the Lender is deemed to have received by reason of any legislation) a
    net amount equal to the amount that it would have received and so retained had no such deduction, withholding or payment been
    required to be made.


 


	16.2	Tax
    credit


 


If
the Lender receives the benefit of a final tax refund or credit resulting from an Obligor having made a deduction or withholding
referred to in, or in respect of which an Obligor has made an increased payment under, clause 16.1 (Gross up), it will pay to
the relevant Obligor such part of that benefit as, in the Lender’s reasonable opinion, will leave it in a no less favourable
position (after that payment, and taking account of any additional payment made to it under clause 16.1 (Gross up) and any tax
payable by it on that additional payment) than it would have been in if no deduction or withholding or payment had been required.
In doing so, the Lender:


 


	 	(a)	will
    be the sole judge of the amount of any such benefit and the date on which it is received and paid;
	 	 	 
	 	(b)	has
    absolute discretion as to the order and manner in which it employs or claims tax credits and allowances available to it and
    is under no obligation to claim relief from any of its tax liabilities in respect of any such deduction or withholding in
    priority to any other claims, credits or deductions available to it; and
	 	 	 
	 	(c)	has
    no obligation to disclose to the Obligor any information regarding its tax affairs or computations.


 




    	34



     


    

 





	16.3	New
    Zealand Resident Withholding Tax


 


The
Lender:


 


	 	(a)	RWT
    Exemption Certificate


 


confirms
to the Borrower that, as at the date of this Agreement (or, if later, as at the date it becomes party to this Agreement), it is
a person of the type listed in section 32E(2)(a) to (h) of the Tax Administration Act 1994, and holds an RWT Exemption Certificate;


 


	 	(b)	Undertaking
    to maintain certificate


 


undertakes
to the Borrower to use reasonable endeavours to maintain the currency of its RWT Exemption Certificate until the Termination Date,
provided that the Lender is lawfully able to do so;


 


	 	(c)	Obligation
    to notify


 


agrees
to notify the Borrower promptly if it ceases to hold, or ceases to be entitled to hold, an RWT Exemption Certificate, following
which the Lender and the Borrower shall negotiate in good faith for a period not exceeding 30 days with a view to agreeing upon
an arrangement that will ensure, so far as possible, that the Borrower is not disadvantaged, and the Lender is not advantaged,
by reason of the loss of the RWT Exemption Certificate. If no such arrangement is agreed within the 30 day period, clause 16.1
(Gross up) will continue to apply.


 


	16.4	FATCA


 


Notwithstanding
anything to the contrary herein, nothing in clause 16.1 or 17 shall apply to the extent the relevant amount relates to a FATCA
Deduction required to be made by a party to this Agreement.


 


	16.5	FATCA
    Information


 


	 	(a)	Subject
    to paragraph (c) below, each of the Lender and an Obligor (in this clause a Party) shall, within ten Business Days
    of a reasonable request by another Party:


 


	 	(i)	confirm
    to that other Party whether it is:


 


	 	(A)	a
    FATCA Exempt Party; or
	 	 	 
	 	(B)	not
    a FATCA Exempt Party;


 


	 	(ii)	supply
    to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party
    reasonably requests for the purposes of that other Party’s compliance with FATCA;
	 	 	 
	 	(iii)	supply
    to that other Party such forms, documentation and other information relating to its status as that other Party reasonably
    requests for the purposes of that other Party’s compliance with any other law, regulation, or exchange of information
    regime.


 




    	35



     


    

 


	 	(b)	If
    a Party confirms to another Party pursuant to paragraph (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes
    aware that it is not or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.
	 	 	 
	 	(c)	Paragraph
    (a) above shall not oblige any Party to do anything, which would or might in its reasonable opinion constitute a breach of:


 


	 	(i)	any
    law or regulation;
	 	 	 
	 	(ii)	any
    fiduciary duty; or
	 	 	 
	 	(iii)	any
    duty of confidentiality.


 


	 	(d)	If
    a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information
    requested in accordance with paragraph (a)(i) or (ii) above (including, for the avoidance of doubt, where paragraph (c) above
    applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is
    not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation
    or other information.


 


	 	(e)	If
    an Obligor is a US Tax Obligor or the Lender or the Borrower reasonably believes that its obligations under FATCA or any other
    applicable law or regulation require it, the Lender shall, within ten Business Days of:


 


	 	(i)	where
    an Obligor is a US Tax Obligor and the Lender is Bank of New Zealand, the date of this Agreement;
	 	 	 
	 	(ii)	where
    an Obligor is a US Tax Obligor on the date of any assignment by the Lender pursuant to clause 25.1 and the Lender is not Bank
    of New Zealand, the date of that assignment;
	 	 	 
	 	(iii)	the
    date a new US Tax Obligor accedes as an Obligor; or
	 	 	 
	 	(iv)	where
    an Obligor is not a US Tax Obligor, the date of a request from the Lender, supply to the Borrower:
	 	 	 
	 	(v)	a
    withholding certificate on Form W-8, Form W-9 or any other relevant form; or
	 	 	 
	 	(vi)	any
    withholding statement or other document, authorisation or waiver as the Lender may require to certify or establish the status
    of such Lender under FATCA or that other law or regulation.


 


	 	(f)	The
    Lender shall provide any withholding certificate, withholding statement, document, authorisation or waiver it receives from
    any other person pursuant to paragraph (e) above to the Borrower.
	 	 	 
	 	(g)	If
    any withholding certificate, withholding statement, document, authorisation or waiver provided to the Borrower pursuant to
    paragraph (e) or (f) above is or becomes materially inaccurate or incomplete, that Lender shall promptly update it and provide
    such updated withholding certificate, withholding statement, document, authorisation or waiver to the Borrower unless it is
    unlawful for the Lender to do so (in which case the Lender shall promptly notify the Borrower). The Lender shall provide any
    such updated  withholding certificate, withholding statement,
    document, authorisation or waiver to the Borrower.


 




    	36



     


    

 


	 	(h)	The
    Borrower may rely on any withholding certificate, withholding statement, document, authorisation or waiver it receives from
    a Lender pursuant to paragraph (e) or (g) above without further verification. The Borrower shall not be liable for any action
    taken by it under or in connection with paragraphs (e), (f) or (g) above.


 


	16.6	FATCA
    Deduction


 


	 	(a)	Each
    Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA
    Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise
    compensate the recipient of the payment for that FATCA Deduction.
	 	 	 
	 	(b)	Each
    Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or
    the basis of such FATCA Deduction), notify the Party to whom it is making the payment and, in addition, shall notify the Borrower
    and the Lender if appropriate.


 


	16.7
    	GST


 


If
any supply by the Lender to the Borrower in relation to any Finance Document is, at the time of supply, subject to GST, the Borrower
will, subject to receipt of a valid tax invoice, pay to the Lender an amount equal to the applicable goods and services tax in
addition to the consideration for that supply.


 


Where
a Finance Document requires any party to reimburse the Lender for any costs or expenses, such costs or expenses shall include
any indirect tax (including GST) incurred by the Lender in respect of those costs or expenses save to the extent that the Lender
is entitled to a repayment or credit in respect of the indirect tax. Where applicable, the Lender will promptly provide the party
with a tax invoice complying with the relevant indirect tax legislation.


 


	16.8	Stamp
    duty


 


The
Obligors must:


 


	 	(a)	pay;
    and
	 	 	 
	 	(b)	within
    3 Business Days of demand, indemnify the Lender against any cost, expense, loss or liability the Lender incurs in relation
    to, 


 


all
stamp duty, registration or other similar tax payable in respect of any Finance Document.


 


	16.9	Notice
    of legal requirements


 


If
a party is required to make a deduction, withholding or payment for or on account of tax or on another account, it shall promptly
notify each other party immediately.


 




    	37



     


    

 


	16.10	Tax
    receipts


 


Promptly
after the making by an Obligor of a deduction or withholding, the Borrower will deliver to the Lender a receipt or other documentation
reasonably satisfactory to the Lender evidencing the deduction or withholding.


 


	16.11
    	Limitation
    for default by Lender


 


Nothing
in this clause 16 shall be construed as requiring an Obligor to pay an amount to the Lender on account of a tax which is a penalty
or interest payable in connection with the Lender’s failure to pay an amount to the revenue in any jurisdiction after receiving
it from an Obligor.


 


	17.	Increased
    costs
	 	 
	17.1	Increased
    costs


 


If,
at any time, as a result of:


 


	 	(a)	the
    introduction of, or a change in, a law, treaty or directive of an agency of state or other regulatory, monetary or accounting
    authority, or in its interpretation by the agency or authority charged with its administration, or by a court of competent
    jurisdiction (including the implementation or application of, or compliance with, any document that forms part of the international
    capital or regulatory framework for banks published by the Basel Committee on Banking Supervision but excluding Basel III);
    or
	 	 	 
	 	(b)	compliance
    by the Lender or by a person with whom the Lender may have a loan, swap or other funding or participation arrangement with
    a directive of an agency of state or other regulatory, monetary or accounting authority,


 


in
each case after the date of this Agreement (or, in relation to a person becoming party to this Agreement subsequently, the date
it becomes party to this Agreement) the Lender determines that:


 


	 	(c)	the
    cost to it of making, funding or maintaining the Facility or any Accommodation or any other amount under a Finance Document,
    or all or any of the amounts comprised in a class of advances formed by or including the Facility or any Accommodation or
    any other amount is increased; or
	 	 	 
	 	(d)	an
    amount payable to it or its effective return under a Finance Document is reduced; or
	 	 	 
	 	(e)	there
    is a reduction in the effective rate of return on its overall capital that, in its view, is attributable to either of paragraphs
    (a) or (b) above applying in relation to its obligations under a Finance Document or to any class of obligations of which
    they form part; or
	 	 	 
	 	(f)	it
    makes a payment or forgoes any interest or other return on or calculated by reference to a sum received or receivable by it
    from a Relevant Party under a Finance Document in an amount that the Lender considers material,


 


then,
and in each case (whether or not the Lender is aware at the date of this Agreement that any such introduction, change or directive
will subsequently take effect):


 




    	38



     


    

 


	 	(g)	the
    Lender will notify the Borrower; and


 


on
demand from time to time by the Lender, the Borrower will pay to the Lender, the amount certified by the Lender to be necessary
to compensate it (and except to the extent that the Borrower is already liable to compensate it under this Agreement) for that
increased cost, reduction, payment or forgone interest or other return (or that portion of it as in the Lender’s opinion,
is attributable to the Facility or any Accommodation or the Lender’s obligations under a Finance Document) (if requested
by the Borrower, this certificate will provide reasonable details of the composition of this amount).


 


No
demand may be made under this clause 17.1 in relation to any increased cost arising in respect of tax or as a consequence of the
wilful misconduct or negligence of the Lender.


 


	17.2	Minimisation


 


If
the Lender has acted in good faith, an amount certified under sub-clause 17.1 (Increased costs) above will be payable regardless
of whether an increased cost, reduction, payment or forgone interest or other return referred to in that clause could have been
avoided.


 


	17.3	Survival
    of obligations


 


The
obligations of the Borrower under sub-clause 17.1 (Increased costs) above are to survive termination of the Facility and payment
of all other indebtedness due under any Finance Document.


 


	17.4	Changes
    in market conditions


 


If,
by reason of circumstances affecting any relevant interbank market generally, it is or may be impossible for the Lender to obtain
the relevant currency in that market (and accordingly it is impossible for it to make, fund or maintain the Facility or any Accommodation
or any other amount under a Finance Document, or all or any of the amounts comprised in a class of advances formed by or including
the Facility or any Accommodation) for any period, the Lender is to notify the Borrower promptly and:


 


	 	(a)	if
    the Accommodation has not been made, the obligation of the Lender to make the Accommodation available will be suspended; and
	 	 	 
	 	(b)	if
    the Accommodation has been made, the Borrower will repay the Accommodation and all other indebtedness of the Borrower under
    each Finance Document either immediately or, as the Lender elects, on the next date for payment of interest.


 


Without
prejudice to the Borrower’s obligations to repay, the Borrower and the Lender are to negotiate in good faith with a view
to agreeing terms for making the Facility available from another source. However, the Lender is under no obligation to agree to
terms or to continue those negotiations if terms are not agreed promptly.


 






    	39



     


    

 


	18.	Indemnities
	 	 
	18.1	General
    indemnity


 


Subject
to any mandatory law, the Obligors will indemnify the Lender against each cost incurred by it as a result of:


 








	 	(a)	the
    occurrence or continuance of an Event of Default; or
	 	 	 
	 	(b)	an
    amount payable by the Obligors under a Finance Document not being paid when due, whether by prepayment, acceleration or otherwise
    (but, so far as appropriate, credit is to be given for amounts, if any, of default interest paid under the Finance Document);
    or
	 	 	 
	 	(c)	a
    prepayment of a Drawing being made or becoming due, or another amount being paid or becoming due, otherwise than on the last
    day of an Interest Period relating to it (whether or not that payment is permitted or required under this Agreement); or
	 	 	 
	 	(d)	a
    Drawing not being drawn on the requested Drawing Date (other than by reason of default by the Lender); or
	 	 	 
	 	(e)	any
    Advance not being advanced on the requested Drawing Date (other than by reason of default by the Lender); or
	 	 	 
	 	(f)	an
    enquiry by a Government Agency involving an Obligor; or
	 	 	 
	 	(g)	reliance
    by the Lender (acting reasonably) on any communication made to it via electronic mail by an authorised signatory of the Borrower,


 


by
payment on demand to the Lender, of the amount that the Lender certifies is required to compensate the Lender for that cost, including
each cost incurred in liquidating or re-employing:


 


	 	(h)	deposits
    or other funds acquired or arranged to fund or maintain a Drawing or any Advance or any part of it; and
	 	 	 
	 	(i)	any
    transaction entered into in anticipation of drawdown and/or disbursement of a Drawing or any Advance.


 


	18.2	Currency
    indemnity


 


If
an amount due from a Relevant Party under a Finance Document or under a suit, action or proceeding has to be converted from the
currency (the first currency) in which it is payable into another currency (the second currency) for the purposes
of:


 


	 	(a)	making
    or filing a claim or proof against a Relevant Party; or
	 	 	 
	 	(b)	obtaining
    an order or judgment in any court; or
	 	 	 
	 	(c)	enforcing
    an order or judgment,


 


then
the Obligors will indemnify the Lender by payment on demand in immediately available funds, in the currency stipulated by the
Lender, against each cost incurred by the Lender as a result of any discrepancy between:


 


	 	(d)	the
    rate of exchange used for that purpose to convert the sum in question from the first currency into the second currency; and
	 	 	 
	 	(e)	the
    rate of exchange at which the Lender may, in the ordinary course of business, purchase the first currency with the second
    currency.


 




    	40



     


    

 


Each
amount due under this clause will be due as a separate debt and will not be affected by, or merged into, a judgment obtained for
other sums due.


 


	18.3	Indemnities
    irrevocable


 


The
above indemnities are unconditional and irrevocable, and will survive both termination of this Agreement and payment of all other
indebtedness due under the Finance Documents.


 


	19.	Costs


 


The
Borrower will pay each cost incurred by the Lender in connection with:


 


	 	(a)	the
    preparation, negotiation, entry into, execution, stamping, registration and release of each Finance Document;
	 	 	 
	 	(b)	each
    amendment to, waiver or consent in respect of, or discharge or release of or under, a Finance Document; and
	 	 	 
	 	(c)	the
    exercise, protection, investigation or enforcement of the Lender’s rights under a Finance Document;


 


in
each case, on demand and on a full indemnity basis. The costs in relation to (a) and (b) must be reasonable.


 


	20.	Cross
    guarantee
	 	 
	20.1
    	Guarantee


 


Each
Obligor unconditionally and irrevocably jointly and severally guarantees to the Lender due payment by each other Obligor (in this
clause, referred to as the Debtor), of the Guaranteed Indebtedness.


 


	20.2
    	Payment


 


Each
Obligor undertakes to the Lender that if, for any reason, a Debtor does not pay when due (whether by acceleration or otherwise)
any of its Guaranteed Indebtedness, it will pay the relevant amount to the Lender immediately on demand.


 


	20.3	Unenforceability
    of obligations


 


As
a separate and continuing undertaking, each Obligor unconditionally and irrevocably undertakes to the Lender that, should any
Guaranteed Indebtedness not be recoverable from an Obligor under any Finance Document for any reason, including a provision of
any Finance Document or an obligation (or purported obligation) of an Obligor to pay any Guaranteed Indebtedness being or becoming
void, voidable, unenforceable or otherwise invalid, and whether or not that reason is or was known to the Lender, and whether
or not that reason is:


 


	 	(a)	a
    defect in or lack of powers of that Obligor or the Debtor or any other person, or the irregular exercise of those powers;
    or
	 	 	 
	 	(b)	a
    defect in or lack of authority by a person purporting to act on behalf of that Obligor or the Debtor or any other person;
    or


 




    	41



     


    

 


	 	(c)	a
    legal or other limitation (whether under the Limitation Act 2010 or otherwise), disability or incapacity of that Obligor or
    the Debtor; or
	 	 	 
	 	(d)	the
    liquidation, administration, amalgamation, change in status, constitution or control, reconstruction or reorganisation of
    that Obligor or the Debtor (or the commencement of steps to effect the same),


 


that
Obligor will, as a sole and independent obligation, pay to the Lender on demand the amount that the Lender would otherwise have
been able to recover (on a full indemnity basis). The expression “Guaranteed Indebtedness” includes any indebtedness
that would have been included in that expression but for anything referred to in this clause.


 


	20.4	Suspense
    account


 


All
amounts from time to time received by the Lender in respect of the Guaranteed Indebtedness of a Debtor from an Obligor other than
the Borrower or otherwise on account of any Obligor may be placed in a suspense account (the Suspense Account) with a view
to preserving the rights of the Lender, to the extent permitted by law, to prove for the whole of the Guaranteed Indebtedness
of the Debtor in the event of any proceeding in, or analogous to, liquidation, administration, amalgamation, change in status,
constitution or control, reconstruction or reorganisation of the Debtor or any other Obligor. Any interest paid on the amount
for the time being in the Suspense Account shall not be payable by the Lender to any Obligor.


 


	20.5	Liability
    as sole principal debtor


 


As
between each Obligor and the Lender (but without affecting the obligations of a Debtor) each Obligor is liable under this clause
in relation to the Guaranteed Indebtedness as a sole and principal debtor and not as a surety.


 


	20.6	No
    discharge


 


	 	(a)	No
    Obligor is discharged, nor are its obligations affected, by:


 


	 	(i)	any
    time, indulgence, waiver or consent at any time given to a Relevant Party or another person; or
	 	 	 
	 	(ii)	an
    amendment (however fundamental) to, or replacement of, a Finance Document or to another security interest, guarantee or other
    agreement (whether or not that amendment increases the liability of that Obligor); or
	 	 	 
	 	(iii)	the
    existence, validity or enforceability of, or the enforcement of or failure to enforce, or the release of any person or property
    from any Finance Document or other security interest, guarantee or agreement; or
	 	 	 
	 	(iv)	the
    liquidation, amalgamation, change in status, constitution or control, reconstruction or reorganisation of any Relevant Party
    or another person (or the commencement of steps to effect any of these); or
	 	 	 
	 	(v)	anything
    else whatever.


 


The
Lender is not liable to any Obligor in respect of any of these matters, even though the Obligors’ rights in subrogation
or otherwise may be prejudiced as a result.


 




    	42



     


    

 


	 	(b)	Each
    Obligor acknowledges and accepts that:



 


	 	(i)	the
    Lender may release one or more Obligor’s obligations under this Agreement without the release of each other Obligor;
	 	 	 
	 	(ii)	release
    by the Lender of one Obligor from its obligations under this Agreement does not constitute release of the obligations of any
    other Obligor; and
	 	 	 
	 	(iii)	in
    any case where an Obligor is released by the Lender from its obligations under this Agreement, the Lender’s rights and
    remedies against each remaining Obligor are preserved.


 


	20.7	Continuing
    guarantee


 


This
guarantee and each Obligor’s obligations under this Agreement:


 


	 	(a)	are
    a continuing security, notwithstanding intermediate payments, settlement of accounts or payments or anything else;
	 	 	 
	 	(b)	are
    in addition to, and not to be merged in, any security interest, guarantee or other agreement, whenever in existence, in favour
    of any person; and
	 	 	 
	 	(c)	will
    remain in full force and effect until the execution by the Lender of an unconditional discharge of each Obligor’s obligations
    under this Agreement.


 


	20.8	No
    competition


 


No
Obligor will, without the written consent of the Lender:


 


	 	(a)	take,
    accept or hold a security interest from another Obligor or, in relation to Guaranteed Indebtedness, from another person; or
	 	 	 
	 	(b)	take
    steps to recover (whether directly or by set-off, counterclaim or otherwise) or accept money or other property, or exercise
    or enforce rights in respect of, any indebtedness of another Obligor to that Obligor arising in any way or, in relation to
    Guaranteed Indebtedness, indebtedness of another person to that Obligor; or
	 	 	 
	 	(c)	claim,
    prove or accept payment in composition by, or a liquidation of, another Obligor or, in relation to Guaranteed Indebtedness,
    another person,


 


and
until such time as the Guaranteed Indebtedness has been fully paid, each Obligor waives all rights of subrogation to which it
would otherwise be entitled by reason of performance of its obligations under the guarantee in this clause or any other guarantee
given in respect of indebtedness of an Obligor. If, notwithstanding this sub-clause, an Obligor holds or receives any such security
interest, money or property, that Obligor will pay or transfer it to the Lender immediately and, pending that payment or transfer,
will hold it on trust for the Lender.


 






    	43



     


    

 


	21.	Representations


 


	21.1	Representations
    and warranties of Obligors


 


Each
Obligor represents and warrants that:


 


	 	(a)	Existence,
    power and authority 


 


it:




 


	 	(i)	in
    the case of each Obligor in its personal capacity:


 


	 	(A)	is
    duly incorporated, validly existing and (where the concept of good standing applies) in good standing under the laws of its
    jurisdiction of incorporation;
	 	 	 
	 	(B)	has
    full power and authority to conduct its business as presently conducted;
	 	 	 
	 	(C)	has
    full power and authority to enter into, deliver and comply with its obligations under the Finance Documents;
	 	 	 
	 	(D)	is
    qualified to do business and (where the concept of good standing applies) in good standing in each other jurisdiction where
    such qualification is required for it to enter into, deliver and comply with its obligations under the Finance Documents;
    and
	 	 	 
	 	(E)	has
    taken all corporate and other action and obtained all consents needed to enable it to do so;


 


	 	(ii)	in
    the case of the Trustee, it has the power under the Trust Deed to own the Trust assets and carry on the business of the Trust
    as it is being conducted, has full power to enter into, deliver and comply with its obligations under the Finance Documents,
    and has taken all action and obtained all consents needed to enable it to do so;


 


	 	(b)
    	No
    consents


 


no
consent, approval or authorization of, filing with, notice to or other act by or in respect of, any governmental authority or
any other person is required in connection with the transactions contemplated hereunder or with the execution, delivery and performance
by it of any Finance Document to which it is a party, except consents, authorizations, filings and notices which have been obtained
or made and are in full force and effect;


 


	 	(c)
    	Obligations
    enforceable


 


it
has duly executed and delivered each of the Finance Documents to which it is a party and its obligations under the Finance Documents
are legal, valid, binding and enforceable in accordance with their respective terms, subject to equitable principles and insolvency
laws of general application;


 


	 	(d)
    	No
    default


 


it
is not in default, nor will its entry into any Finance Document to which it is a party cause it to default, under:


 


	 	(i)	any
    agreement relating to indebtedness; or
	 	 	 
	 	(ii)	any
    guarantee; or


 




    	44



     


    

 


	 	(iii)	any
    other agreement,


 


to
an extent or in a manner that has, or might have, a material adverse effect on it and no such agreement limits its capacity to
sell any Debts and give title thereto to the Lender;


 


	 	(e)
    	Compliance
    with laws, no conflict


 


its
entry into the Finance Documents and the exercise of its rights and obligations under and in connection with the Finance Documents
does not:


 


	 	(i)	contravene
    any law to which it is subject:
	 	 	 
	 	(ii)	conflict
    with or result in a breach of, any agreement to which it is a party where such breach or conflict would have a material adverse
    effect;
	 	 	 
	 	(iii)	conflict
    with or result in a breach of any of the documents constituting it (including, in relation to the Trustee, the Trust Deed);
    or
	 	 	 
	 	(iv)	limit
    any of its powers or any right or ability of its directors to exercise its powers;


 


	 	(f)
    	Solvency


 


	 	(i)	in
    the case of each Obligor in its personal capacity, it is solvent and able to pay its indebtedness as it falls due; and
	 	 	 
	 	(ii)	in
    the case of the Trustee, it is solvent and able to pay its indebtedness as it falls due from the relevant Trust assets, where
    indebtedness is incurred as a Trustee;


 


	 	(g)
    	No
    security interest


 


except
as disclosed to and accepted in writing by the Lender and any Permitted Security, no security interest exists over or affects,
nor is there any agreement to give or permit to exist, any security interest over or affecting, any of its property;


 


	 	(h)
    	Financial
    statements


 


the
latest audited annual financial statements as delivered to the Lender:


 


	 	(i)	include
    those most recently prepared for the last period and as at the last date for which financial statements have been prepared,
    and include copies of all documents required by law to accompany them;
	 	 	 
	 	(ii)	were
    prepared in accordance with Accounting Principles;
	 	 	 
	 	(iii)	give
    a true and fair view of its financial position and, in relation to that period, the consolidated financial position of the
    Consolidated Group as at the date and for the period to which they relate;
	 	 	 
	 	(iv)	disclose
    or reserve against all liabilities (contingent or otherwise) as at that date and all unrealised or anticipated costs from
    any commitment entered into by the relevant person(s) and that existed on that date;
	 	 	 
	 	(v)	include
    a true and complete copy of any auditor’s report; and


 




    	45



     


    

 


	 	(vi)
    	are
    signed by two directors (or one, if there is only one director);


 


	 	(i)	No
    material adverse change


 


there
has been no material adverse change since the last date as at which any of the financial statements referred to in the preceding
sub-clause were made up;


 


	 	(j)	Litigation


 


no
litigation, arbitration or administrative proceeding is, as at the Commencement Date, current or pending or, to its knowledge,
threatened that has, or could have, a material adverse effect on it or on the Lender’s ability to exercise or enforce its
rights under any Finance Document;


 


	 	(k)
    	Information


 


	 	(i)	all
    information provided by it or any other person on its behalf to the Lender in connection with the Finance Documents was true
    in all material respects as at the date that information was provided, and remains so;
	 	 	 
	 	(ii)	there
    are no facts or circumstances that have not been disclosed to the Lender that would make the information referred to in sub-paragraph
    (i) above untrue or misleading in any material respect; and
	 	 	 
	 	(iii)	it
    has disclosed to the Lender all information that would be material to assessment by the Lender of the risks to be assumed
    by the Lender under the Facility;


 


	 	(l)	No
    Event of Default


 


no
Event of Default has occurred and is continuing;


 


	 	(m)
    	Security
    Documents


 


each
of the Security Documents is effective to create in favour of the Lender a legal, valid and enforceable lien on, and security
interest in, the Secured Property described therein and proceeds thereof as security for the obligations of the Obligors under
the Finance Documents;


 


	 	(n)	Ranking of obligations




 


	 	(i)	in
    respect of each Obligor in its personal capacity, its liabilities under each Finance Document to which it is a party will
    at all times rank at least pari passu with the claims of all of its other creditors, except where such claims are preferred
    solely by operation of law or are secured pursuant to a Permitted Security;
	 	 	 
	 	(ii)	in
    respect of the Trustee:


 


	 	(A)	to
    the extent that its payment obligations under the Finance Documents are not indemnified out of Trust assets, they rank at
    least pari passu with the claims of all its other unsecured and unsubordinated creditors, except for obligations mandatorily
    preferred by law applying to companies generally; and


 




    	46



     


    

 


	 	(B)	to
    the extent that its payment obligations under the Finance Documents are indemnified out of Trust assets, they rank at least
    pari passu with the claims of all its other unsecured and unsubordinated Trust creditors, except for obligations mandatorily
    preferred by law;


 


	 	(o)
    	Not
    trustee


 


other
than in relation to the Trustee as trustee of the Trust, it is not a trustee of any trust;


 


	 	(p)
    	Group
    structure chart


 


the
group structure diagram in Schedule 8 sets out the true and correct corporate structure and ownership of the Consolidated Group
at the Commencement Date and does not omit any material detail;


 


	 	(q)	Intellectual
    Property


 


it
owns or has licensed to it on arm’s length terms, or otherwise has available to it, all IP rights necessary for the conduct
of its business and all software necessary for the conduct of its business in each case where failure to do so has or would be
likely to have a material adverse effect;


 


	 	(r)	No
    amount owing the 
	 	 	 
	 	 	Shares are fully
    paid;
	 	 	 
	 	(s)
    	Sole
    owner


 


	 	(i)	in
    the case of each Obligor, in its personal capacity, it is the sole legal and (subject to any Permitted Security) beneficial
    owner of, and has rights in, all the Secured Property;
	 	 	 
	 	(ii)	in
    the case of the Trustee, it is the sole legal owner of, or otherwise has or will have a sufficient right, interest or power
    to grant a security interest in the Trust assets;


 


	 	(t)	Share
    certificates


 


other
than as notified to the Lender in writing or in respect of a UK Obligor, no Certificates have been issued in respect of the Shares
or units in the Trust;


 


	 	(u)
    	No
    other interest


 


no
other person has any interest in, or other right over, the Secured Property except:


 


	 	(i)	to
    the extent (if any) set out in or permitted by the Finance Documents;
	 	 	 
	 	(ii)	Permitted
    Security; or
	 	 	 
	 	(iii)	as
    otherwise agreed in writing by the Lender;


 






    	47



     


    

 


	 	(v)
    	No
    foreign property


 


at
the date of this Agreement, all of its Material Secured Property is in its possession and is situated in New Zealand and/or Australia
other than shares it owns in overseas entities; and


 


	 	(w)	Serial
    Numbered Secured Property


 


at
the date of this document, the information in Schedule 9 is true in all respects and includes the details of all of its Serial
Numbered Secured Property.


 


	 	(x)	Listing


 


in
relation to any Obligor whose shares are listed on a registered stock exchange only, it will comply with the rules applicable
to that registered stock exchange where failure to do so has or is reasonably likely to have a Material Adverse Effect.


 


	21.2	Trust
    representations


 


The
Trustee represents and warrants personally, and as trustee, to the Lender:


 


	 	(a)
    	Obligor
    as trustee


 


	 	(i)	it
    is the only trustee of the Trust. No action has been taken or, to the best of its knowledge or belief, proposed by any person
    with the power or standing to do so to remove it as trustee of the Trustee or to appoint an additional trustee to the Trust;
	 	 	 
	 	(ii)	there
    are no former trustees of the Trust; and
	 	 	 
	 	(iii)	it
    has never been the only unit holder of the Trust;


 


	 	(b)
    	the
    Trust


 


	 	(i)	the
    Trust is properly constituted. No action has been taken or, to the best of its knowledge or belief, proposed by any person
    with the power or standing to do so to terminate or resettle the Trust; and
	 	 	 
	 	(ii)	the
    Trust is not a managed investment scheme which must be registered under Part 5C.1 of the Australian Corporations Act;


 


	 	(c)
    	the
    Trust Deed


 


	 	(i)	each
    copy of the Trust Deed given to the Lender on or before the date of this Agreement is a true and up to date copy and discloses
    all the terms of the Trust, other than those implied by law; and
	 	 	 
	 	(ii)	the
    Trust Deed constitutes valid, binding and enforceable obligations of the parties to it and is duly stamped and complies with
    all applicable laws;


 


	 	(d)
    	powers
    and duties


 


it
has the power to enter into the Finance Documents and the transactions they contemplate, exercise its right under them and comply
with its obligations in connection with them as trustee of the Trust and in doing so it has acted and is acting properly. All
requirements to enable it to do so have been and remain satisfied;


 




    	48



     


    

 


	 	(e)	the
    Trust assets


 


except
as expressly permitted by the Finance Documents, no Trust asset has been resettled or vested in any person. No one is presently
entitled to call for the distribution of the Trust assets; and


 


	 	(f)	the
    Trustee’s Indemnity


 


	 	(i)	it
    enjoys the benefit of and may exercise and enforce rights of indemnity or other rights to apply, use or retain Trust assets
    to satisfy its obligations arising under or in connection with the Finance Documents and the transactions they contemplate,
    without the consent or approval of any person or court. Those rights are not subject to a limitation or obligation to make
    good or clear accounts and the Lender may subrogate to them except to the extent affected by their own conduct;
	 	 	 
	 	(ii)	after
    taking into account all other present and contingent Trust liabilities and its rights of contribution and subrogation, the
    Trust assets are sufficiently valuable and liquid to satisfy in full its indemnity with respect to its payment obligations
    in connection with the Finance Documents and the transactions they contemplate as and when they become due and payable; and
	 	 	 
	 	(iii)	no
    application or order has been sought by a person other than a Lender or has been made in any court for a person to subrogate
    to its indemnity with respect to Trust assets.


 


	21.3	Representations
    in relation to UK Obligors


 


Each
UK Obligor represents that:


 


	 	(a)	Centre
    of main interests


 


for
the purposes of the Insolvency Regulation, its centre of main interest (as that term is used in Article 3(1) of the Insolvency
Regulation), is situated in England and Wales and it has no “establishment” (as that term is used in Article 2(h)
of the Insolvency Regulation) in any other jurisdiction;


 


	 	(b)	Pensions


 


it
is not or has not at any time been:


 


	 	(i)	an
    employer (for the purposes of sections 38 to 51 of the Pensions Act 2004 (UK)) of an occupational pension scheme which is
    not a money purchase scheme (both terms as defined in the Pensions Schemes Act 1993 (UK)); or
	 	 	 
	 	(ii)	“connected”
    with or an “associate” (as those terms are used in sections 38 and 43 of the Pensions Act 2004) (UK) of such an
    employer. No UK Obligor has been issued with a Financial Support Direction or a Contribution Notice in respect of any pension
    scheme.


 


	21.4	Representations
    continuing - general


 


Each
of the representations in this clause (but not clause 21.3(b)) will be deemed to be repeated on each date a Drawing is requested,
on each Drawing Date and on each Interest Payment Date so long as this Agreement remains in effect by reference to the facts and
circumstances then existing, except that each reference to financial statements will be construed as a reference to the latest
available financial statements of the relevant person.


 




    	49



     


    

 


	21.5	Representations
    relating to future Secured Property


 


Whenever
any Secured Property is acquired by a Security Provider or comes into existence after the date of this Deed, that Security Provider
will be deemed to give the representations in clause 21.121.1(s), 21.1(t), 21.1(u) (if relevant), (v) and (w) in respect of that
Secured Property.


 


	21.6	Reliance
    on representations


 


Each
Obligor acknowledges that the Lender has been induced to enter into this Agreement and will be induced to make the Facilities
available in reliance on the representations in this clause.


 


	21.7	No
    representations to Obligors


 


Each
Obligor acknowledges and accepts that it has not relied and will not rely on any statement made by or on behalf of the Lender
in deciding to enter into any Finance Document or to exercise any right or perform any obligation under any Finance Document.


 


	22.	Undertakings


 


	22.1	General
    undertakings


 


Each
Obligor (or, in relation to clauses 22.1(o), (p), (q), (s) and (u), each Security Provider only) undertakes that it will:


 


	 	(a)	Events
    of Default


 


notify
the Lender of the occurrence of any Event of Default or Potential Event of Default and any event or circumstance that may have
a material adverse effect on it, immediately upon becoming aware of it, giving full details of it and of any action taken (or
to be taken) as a result;


 


	 	(b)	Use
    of Accommodation


 


use
any Accommodation solely for the purposes set out in this Agreement (failing which the relevant amounts will be held on trust
for the Lender);


 


	 	(c)	Conduct
    of business


 


	 	(i)	pay
    all its indebtedness when due; and
	 	 	 
	 	(ii)	comply
    with all consents and all obligations binding on it by law, contract or otherwise,


 


where
failure to do so would have a material adverse effect on it;


 




    	50



     


    

 


	 	(d)
    	Maintenance
    of corporate existence


 


do
all things necessary to maintain its corporate existence and the corporate existence of each other Obligor, where failure to do
so would have a material adverse effect on it;


 


	 	(e)
    	Maintain
    consents


 


maintain
in full effect all consents required to enable it to comply with its obligations under the Finance Documents where failure to
do so would have a material adverse effect on it;


 


	 	(f)	Compliance
    with laws


 


duly
and promptly comply with all laws, directives and consents the non-compliance with which might give rise to a security interest
(not being a Permitted Security) or have a material adverse effect on it, or that may adversely affect the rights or security
of the Lender under a Finance Document;


 


	 	(g)
    	Pay
    taxes


 


	 	(i)	file
    all tax returns as required by law, and pay and discharge all taxes (including GST payable in accordance with the GST Act
    and all income tax assessed against it pursuant to the Income Tax Act 2007 or otherwise, or in relation to an Obligor incorporated
    under the laws of Australia, the Australian Tax Act), assessments and governmental charges payable by it or on its property
    prior to the date that penalties become payable, except only to the extent that those taxes, assessments or governmental charges
    are being contested in good faith by appropriate proceedings and adequate reserves are set aside for their payment, where
    failure to do so would have a material adverse effect on it;
	 	 	 
	 	(ii)	lodge
    such returns as may be required to be lodged by it pursuant to the terms of the Income Tax Act 2007 (or in relation to an
    Obligor incorporated under the laws of Australia, the Australian Tax Act) or otherwise;


 


	 	(h)
    	Further
    assurance


 


promptly,
and at its own cost:


 


	 	(i)	deposit
    with the Lender all documents of title constituting or evidencing the Secured Property unless (without limiting (ii) below)
    those documents of title are required to be retained by the Obligors to enable them to conduct their business as presently
    conducted;
	 	 	 
	 	(ii)	deposit
    with the Lender each Certificate;
	 	 	 
	 	(iii)	(on
    request) execute and deliver to the Lender all transfers, assignments, novations and other agreements;
	 	 	 
	 	(iv)	do
    all acts and things in respect of a Finance Document,


 


in
respect of (ii) to (iv) as the Lender may deem necessary to secure the full benefit of its rights under any Finance Document or
to transfer to the Lender title to any Debt but, while no Event of Default is continuing, subject to any qualifications as to
timing or when the Lender may request the same as set out in the Security Documents;


 




    	51



     


    

 


	 	(i)	Information
    to be true


 


	 	(i)	ensure
    that all information provided by it to the Lender in connection with the Finance Documents after the date of this Agreement
    is true in all material respects as at the date that information is provided; and
	 	 	 
	 	(ii)	not
    omit to state any fact or circumstance that would make that information untrue or misleading in any material respect; and
	 	 	 
	 	(iii)	ensure
    that all projections and forecasts made by it will be prepared in good faith based upon what it believes to be reasonable
    assumptions it being understood that such forecasts and projections are subject to significant uncertainties and contingencies,
    many of which are beyond its control and it can give no assurance that the projections and forecasts will be realised;


 


	 	(j)	Insurance


 


ensure
that it, and each of its subsidiaries, will:


 


	 	(i)	keep
    insured with reputable insurers all its property of an insurable nature that is customarily insured (either generally or by
    persons carrying on a similar business) against loss or damage by fire and other risks normally insured against, by persons
    carrying on the same class of business as that carried on by it (and any other risks that the Lender may from time to time
    reasonably require), for their replacement value (meaning the total cost of entirely rebuilding, reinstating or replacing
    that property in the event of it being completely destroyed, together with architects’ and surveyors’ fees) or
    such lower value as the Lender may agree in writing;
	 	 	 
	 	(ii)	maintain
    insurance with reputable insurers against loss of profits and third party liabilities at levels no lower than those adopted
    from time to time by persons carrying on a similar business of a comparable size;
	 	 	 
	 	(iii)	maintain
    insurance over all stock with reputable insurers and for an amount not less than the Revolving Credit Facility Limit; and
	 	 	 
	 	(iv)	promptly
    pay all premiums and do all other things necessary to maintain the insurances required by this clause;


 


	 	(k)
    	Environmental
    Laws


 


	 	(i)	comply
    (and has complied with) all Environmental Laws affecting its operation or its property, where failure to do so would have
    a material adverse effect on it;
	 	 	 
	 	(ii)	inform
    the Lender of any material breach of an Environmental Law, or any notice or order received by it under an Environmental Law,
    that is likely to adversely affect it or its property;
	 	 	 
	 	(iii)	provide
    the Lender on reasonable request (but not more frequently than annually), but at the Borrower’s sole cost, with environmental
    audits and reports in respect of its property, in a form and from an independent consultant acceptable to the Lender; and


 




    	52



     


    

 


	 	(iv)	indemnify
    the Lender against all liabilities and costs arising out of any act or omission of it in respect of any circumstance that
    breaches, or might breach, any Environmental Law;


 


	 	(l)	Proper
    accounts


 


keep
and maintain proper accounts and records in relation to its business and make immediate and correct entries of all its transactions;


 


	 	(m)
    	Company
    records


 


	 	(i)	in
    relation to an Obligor incorporated in New Zealand, keep its share register at its registered office and its books of account
    at either its registered office or its principal place of business in New Zealand or such other place in New Zealand as the
    Borrower has notified to the Registrar of Companies under section 195 of the Companies Act 1993; and
	 	 	 
	 	(ii)	permit
    the Lender and its solicitors and accountants and others acting under its authority to inspect and examine the same at all
    reasonable times and to take copies thereof or extracts therefrom and to take all necessary steps to enable the Lender and
    such other parties access to the Borrower’s registered office and principal place of business or such other place at
    which such records are kept (as the case may be) to enable such inspection and examination to take place;


 


	 	(n)	Right
    of inspection


 


	 	(i)	permit,
    and to take all necessary steps to enable, the Lender and its authorised officers and agents, to enter at all reasonable times
    upon any land, premises or offices, occupied by the Borrower to inspect the stock-in-trade, raw material, and work in progress
    of the Borrower and each and every one of its books, delivery and dispatch dockets, accounts (including all bank accounts),records,
    returns (including income tax, group tax and GST returns) and papers of every description (and where copies of such are available
    to inspect such copies); and
	 	 	 
	 	(ii)	permit
    the Lender, its solicitors, accountants and other authorised officers to retain for such period as the Lender, or such persons
    think fit all such books, delivery and dispatch dockets, accounts, records, returns, and papers of every description unless
    any of those documents are required to enable it to conduct its business; and
	 	 	 
	 	(iii)	permit
    the Lender and its authorised officers and agents to take copies of any of the aforementioned documents on reasonable request;


 


	 	(o)
    	Maintain
    and repair Secured Property


 


maintain
in good working order all Material Secured Property and, on request of the Lender, remedy every material defect in the condition
of any Material Secured Property;


 


	 	(p)
    	Serial-numbered
    goods


 


	 	(i)	on
    request, provide the Lender with any serial numbers that the Lender requires to make an effective registration against all
    serial-numbered goods or Serial Numbered Secured Property (in each case, with a value of greater than $100,000), either on
    execution of this Agreement or (if later) when the serial-numbered goods or Serial Numbered Secured Property become Secured
    Property;


 




    	53



     


    

 


	 	(ii)	notify
    the Lender immediately of any serial number when it is allocated to any Secured Property that is a serial-numbered good or
    Serial Numbered Secured Property (in each case with a value of greater than $100,000); and
	 	 	 
	 	(iii)	except
    with the Lender’s prior written consent, not change or remove the serial number of any serial-numbered goods or Serial
    Numbered Secured Property after it has disclosed the serial number to the Lender;


 


	 	(q)
    	Grant
    security


 


in
relation to any Obligor who is not a Security Provider, if at any time prior to the Termination Date, the Lender (in its sole
discretion) requires that Obligor to become a Security Provider and grant security over its assets in favour of the Lender, that
Obligor will, within 10 Business Days following a written request from the Lender, take all required action to grant security
over all (or any part as agreed by the Lender) of its present and after acquired property, in favour of the Lender, to secure
all of the obligations of the Obligors under the Finance Documents (and therefore become a Security Provider), together with delivering:


 


	 	(i)	a
    certificate of a director of the Obligor, in the form of Schedule 6 where the New Borrower is incorporated in New Zealand
    (or such other form as the Lender may require);
	 	 	 
	 	(ii)	a
    legal opinion in form and substance, and from solicitors, acceptable to the Lender; and
	 	 	 
	 	(iii)	all
    other information and documentation reasonably requested by the Lender.


 


	 	(r)	Not
    alter Secured Property


 


ensure
that no material alteration is made to any Material Secured Property outside the ordinary course of business;


 


	 	(s)	Registration
    of security


 


promptly
register each security interest created under the Finance Documents in each jurisdiction (other than New Zealand, Australia and
the United States of America) in which registration may be required or advisable in order to ensure its enforceability, validity
and priority;


 


	 	(t)	Transactional
    Banking


 


maintain
all transactional banking (including deposits and foreign exchange hedging) with the Lender unless the Lender is unable to provide
the necessary services in the Obligor’s jurisdiction of operation; and


 


	 	(u)
    	Preserve
    and protect security


 


promptly
do everything reasonably requested by the Lender to:


 


	 	(i)	preserve
    and protect the value of the Secured Property, fair wear and tear and depreciation in the ordinary course of business excluded;
    and


 




    	54



     


    

 


	 	(ii)	protect
    and enforce its title and rights, and the Lender’s security interest in the Secured Property;


 


	 	(v)	Marketable
    Securities


 


if
the Secured Property includes Marketable Securities:


 


	 	(i)	provide
    the Lender with control over the Secured Property in accordance with the Australian PPSA and otherwise in the manner requested
    by the Lender, including by doing the following:


 


	 	(A)	on
    request by the Lender, execute and deliver to the Lender transfer forms in relation to those Marketable Securities (undated
    and blank as to transferee and consideration and otherwise in form and substance satisfactory to the Lender);
	 	 	 
	 	(B)	enter
    into any tripartite agreement or other agreement requested by the Lender with the relevant Obligor’s sponsor or intermediary
    with respect to the Marketable Securities, in form and substance satisfactory to the Lender;


 


	 	(ii)	notify
    the Lender as soon as it becomes aware of:


 


	 	(A)	any
    right or entitlement it may take up or exercise arising directly or indirectly at any time from or in relation to the Marketable
    Securities and exercise all such rights and entitlements in accordance with any instructions from the Lender;
	 	 	 
	 	(B)	any
    proposal or action taken to convert any Secured Property comprising certificated Marketable Securities into uncertificated
    Marketable Securities and immediately take any steps necessary to comply with its obligations under clause 22.1(w);


 


	 	(iii)	not
    do anything (including by exercising its voting rights) or fail to do anything which could entitle any person to a lien or
    other security interest over any of the Marketable Securities or which could result in the forfeiture of the Marketable Securities
    or adversely affect the value of the Marketable Securities;


 


	 	(w)
    	control
    and possession


 


to
the extent that any Secured Property is of a type over which a security interest could be perfected by ‘control’ or
by ‘possession’ each as defined under the PPSA, promptly do anything that the Lender may require to enable it to perfect
the security interest of the Lender over that Secured Property by control or by possession except where (and for so long as):


 


	 	(i)	control
    has been given to the holder of a Permitted Security;
	 	 	 
	 	(ii)	it
    is not possible for more than one party to effect control of the Secured Property; and
	 	 	 
	 	(iii)	the
    Lender has expressly agreed in writing to subordinate the security interest created by the relevant Security Documents to
    that Permitted Security,


 


or
the Secured Property is inventory (as defined in the PPSA) or a Revolving Asset;


 




    	55



     


    

 


	 	(x)	listing


 


in
relation to any Obligor whose shares are listed on a registered stock exchange only:


 


	 	(i)	comply
    with the rules applicable to that registered stock exchange where failure to do so has or is reasonably likely to have a Material
    Adverse Effect; and
	 	 	 
	 	(ii)	notify
    the Lender in writing of any person holding or likely to hold a relevant interest of 20% or more of the shares in the relevant
    Obligor or that ceases to hold such interest;


 


	 	(y)
    	delisting


 


notify
the Lender in writing of any event or circumstance where an Obligor’ shares are delisted from any registered stock exchange
or the relevant Obligor having the intention to delist its shares from any registered stock exchange or any event or circumstance
where such shares are suspended from trading or placed in a trading halt other than at the request of the relevant Obligor;


 


	 	(z)	change of details




 


notify
the Lender:


 


	 	(i)	on
    becoming aware that it has received, or is likely to receive, an ACN, ABN, ARBN or ARSN, (in its own capacity or as trustee)
    under which it holds any Secured Property; and
	 	 	 
	 	(ii)	at
    least 14 days before applying for such a new number;


 


	 	(aa)	Chattel Paper



 


at
the request of the Lender, promptly give possession of any Chattel Paper (as defined in the PPSA) that is Material Secured Property
to the Lender;


 


	 	(bb)	PPSA
    policies and steps


 


if:


 


	 	(i)	an
    Obligor holds any security interests as defined in the PPSA (PPSA Security Interests); and
	 	 	 
	 	(ii)	a
    failure by the Obligor to perfect any of the PPSA Security Interests referred to in paragraph (i) would or would be likely
    to have a Material Adverse Effect,


 


the
Obligor must (at its own cost):


 


	 	(iii)	provide
    evidence to the Lender that the Obligor has in place procedures for the perfection of those PPSA Security Interests, being
    procedures which ensure that the Obligor takes all reasonable steps to obtain the highest ranking priority possible under
    the Australian PPSA in respect of those PPSA Security Interests (Procedures); and
	 	 	 
	 	(iv)	keep
    the Procedures up to date and comply with the Procedures; and


 




    	56



     


    

 


If
the Lender reasonably suspects that an Obligor is failing to comply with clause 22.1(2)(iii), the Lender may request an audit
of the Procedures and the Obligor’s compliance with the Procedures. That audit must be undertaken by a person approved by
the Lender and, if it is established that the Obligor was not following the Procedures in any material respect, at the expense
of the Obligor.


 


	22.2	Reporting
    and information undertakings


 


The
Borrower and the Parent (as applicable) undertakes that it will:


 


	 	(a)
    	Accounts


 


as
soon as available and in any event within 180 days after the end of its financial years, deliver to the Lender:


 


	 	(i)	the
    Borrower’s audited consolidated financial statements and group financial statements as at the end of and for that financial
    year; and
	 	 	 
	 	(ii)	the
    Parent’s audited consolidated financial statements and group financial statements as at the end of and for that  financial
    year;


 


	 	(b)
    	Monthly
    Management Accounts


 


as
soon as available and in any event within 30 days after the last day of each month, provide the Lender with copies of the Borrower’s
monthly financial accounts of the Consolidated Group prepared by the management of the Borrower in accordance with Accounting
Principles;


 


	 	(c)
    	Compliance
    Certificate


 


	 	(i)	with
    each monthly financial accounts delivered pursuant to clause 22.2(b) up to and including 31 December 2018, provide the Lender
    with a Monthly Compliance Certificate signed by two directors of the Borrower or a director and the Chief Financial Officer;
    and
	 	 	 
	 	(ii)	within
    30 days after each Reporting Date, provide the Lender with a Compliance Certificate signed by two directors of the Borrower
    or a director and the Chief Financial Officer;


 


	 	(d)
    	Budget


 


as
soon as it becomes available and in any event not later than 30 June in each year (or, from 1 January 2019 onwards, 31 January
in each year), the Borrower’s annual budget (including assumptions and appropriate commentary and containing a fully integrated
statement of financial position, statement of financial performance, cashflow and Capital Expenditure budget) for the Consolidated
Group for that financial year;


 


	 	(e)	Other
    information 


 


promptly:




 


	 	(i)	deliver
    to the Lender:


 




    	57



     


    

 


	 	(A)	details
    of any bona fide litigation, arbitration or administrative proceeding in respect of an amount in excess of $2,000,000 or its
    equivalent in other currencies;
	 	 	 
	 	(B)	upon
    request, a certificate signed by a director certifying that, other than as previously notified in writing to the Lender, no
    Event of Default, Event of Review or Potential Event of Default has occurred and is continuing;
	 	 	 
	 	(C)	on
    request, a list of all investment securities (as defined in the PPSA) held by it;
	 	 	 
	 	(D)	upon
    obtaining actual knowledge of the occurrence of any Event of Default or Event of Review, a notice describing the same in reasonable
    detail and, together with such notice or as soon thereafter as possible, a written description of the action that it has taken
    or proposes to take with respect thereto;


 


	 	(ii)	notify
    the Lender in writing of:


 


	 	(A)	any
    change in its authorised signatories, giving specified signatures and evidence satisfactory to the Lender of their authority;
	 	 	 
	 	(B)	the
    occurrence of any circumstance, act or condition (including the adoption, amendment or repeal of any governmental rule or
    notice (whether formal or informal, written or oral) or the failure to comply with the terms and conditions of any legal requirement)
    which could reasonably be expected to result in a material adverse effect on its ability to grant the liens intended to be
    granted under the Finance Documents or otherwise perform its obligations thereunder;
	 	 	 
	 	(C)	any
    Material Secured Property that is located abroad;
	 	 	 
	 	(D)	any
    Material Secured Property that is to be moved from the jurisdiction where it was situated at the time the security interest
    under a Security Document attached to it;
	 	 	 
	 	(E)	if
    any material personal property that is not Material Secured Property and which is subject to a security interest that has
    attached becomes an accession to any Secured Property, promptly having become aware of that; or
	 	 	 
	 	(F)	on
    the Lender’s request, of the present location of any Material Secured Property,


 


except
in relation to inventory disposed of in the ordinary course of an Obligor’s ordinary business;


 


	 	(iii)	immediately
    notify the Lender if it becomes bound to complete the acquisition of any:


 


	 	(A)	Real
    Property;
	 	 	 
	 	(B)	investment
    securities (as defined in the PPSA) outside the ordinary course of its ordinary business; or


 




    	58



     


    

 


	 	(iv)	within
    seven days of request, provide to the Lender any other information that the Lender reasonably requests with respect to its
    business or financial condition.


 


	22.3	Financial
    undertakings


 


The
Borrower (or, in relation to clause 22.3(a), the Parent) undertakes to the Lender that:


 


	 	(a)
    	Group
    coverage


 


the
Parent will procure that each of its wholly owned subsidiaries executes a Supplemental Deed and delivers to the Lender the documents
and information specified in clause 26.3.


 


	 	(b)
    	Interest
    Cover Ratio


 


the
Interest Cover Ratio, calculated as at each Reporting Date (commencing on the 30 April 2019 Reporting Date) in respect of the
Reporting Period ending on the Reporting Date, is greater than 3.00 times;


 


	 	(c)
    	Gross
    EBITDA Ratio


 


the
EBITDA for the Guaranteeing Group for:


 


	 	(i)	the
    three months ending on 30 September 2018, is greater than $0; and
	 	 	 
	 	(ii)	the
    six months ending on 31 December 2018, is greater than NZ$3,000,000.


 


	 	(d)
    	Inventory
    and Receivables Ratio


 


the
Inventory and Receivables Ratio, calculated as at each Reporting Date (commencing on the 30 September 2018 Reporting Date), is
greater than 2.00 times.


 


	 	(e)	Actual Sales, Actual Gross Profit Variance
    to Budget




 


in
relation to each calendar month for the period up to an including 31 December 2018:


 


	 	(i)	the
    Actual Sales of the Group for that calendar month shall not adversely vary from the Budgeted Sales of the Group for that calendar
    month by more than 10%; and
	 	 	 
	 	(ii)	the
    Actual Gross Profit of the Group for that calendar month shall not adversely vary from the Budgeted Gross Profit for that
    calendar month by more than 10%.


 


	22.4	Changes
    to Accounting Principals


 


If,
in the reasonable opinion of the Lender or the Borrower, any changes to Accounting Principles materially alter the effect of any
undertaking in clause 22.3 (Financial undertakings), or any defined term used in any such undertakings, the Lender and the Borrower
will negotiate in good faith to amend the relevant undertakings and definitions so that they have an effect comparable to the
effect of the undertakings in clause 22.3 (Financial undertakings) at the date of this Agreement. If amendments are not agreed
within 30 days (or any longer period agreed in writing between the Lender and the Borrower), then the Borrower will provide, with
the financial statements and other information required under clause 22.2 (Reporting and information undertakings) any reconciliation
statements (audited, where applicable) necessary to enable calculations based on Accounting Principles as it was before such changes,
and the changes will be ignored for the purposes of this clause.


 




    	59



     


    




 


	22.5	Negative
    undertakings


 


Each
Obligor undertakes that it will not, without the prior written consent of the Lender:


 


	 	(a)
    	Security
    interests


 


create
or permit to exist any security interest over or affecting its property, other than a Permitted Security; or


 


	 	(b)
    	Disposals


 


either
by a single transaction or series of transactions, whether related or not and whether voluntary or involuntary, dispose of all
or a substantial part of its property other than a Permitted Disposal; or


 


	 	(c)
    	Indebtedness


 


incur
any Finance Debt, except:


 


	 	(i)	under
    a Finance Document;
	 	 	 
	 	(ii)	indebtedness
    owed by one Security Provider to another Security Provider; and
	 	 	 
	 	(iii)	indebtedness
    that is fully subordinated to all amounts owed under the Finance Documents on terms satisfactory to the Lender; or


 


	 	(d)	Distributions




 


make
any distribution except:


 


	 	(i)	by
    a wholly-owned subsidiary of an Obligor to the Obligor;
	 	 	 
	 	(ii)	by
    one Security Provider to another Security Provider; or
	 	 	 
	 	(iii)	where
    paid from Free Cashflow or net profit after tax provided that:


 


	 	(A)	the
    total of all such dividends in the 12 month period ending on the last day of a financial year of the Borrower does not exceed
    the lesser of net profit after tax and Free Cashflow; and
	 	 	 
	 	(B)	no
    Event of Default or Potential Event of Default has occurred or would occur as a result of making that distribution; or


 


	 	(e)
    	Transactions
    with related persons


 


either
by a single transaction or a series of transactions, whether related or not and whether voluntary or involuntary:


 


	 	(i)	dispose
    of any of its property to, or purchase any property from;


 




    	60



     


    

 


	 	(ii)	provide
    services to, or accept services from;
	 	 	 
	 	(iii)	provide
    financial accommodation to, or accept indebtedness from; or
	 	 	 
	 	(iv)	enter
    into any other transaction, with, or for the benefit of, any related person, other than:
	 	 	 
	 	(v)	where
    such transaction is entered into for fair market value on commercial arms’ length terms; or
	 	 	 
	 	(vi)	where
    such transaction is expressly permitted by a Finance Document; or


 


	 	(f)	Financial
    accommodation


 


be
a creditor or guarantor in respect of any Finance Debt except for:


 


	 	(i)	Permitted
    Financial Accommodation; or
	 	 	 
	 	(ii)	any
    indebtedness referred to in sub-clause (c)(iii) above;


 


	 	(g)
    	Change
    of business


 


make
a substantial change in the nature or scope of its business as presently conducted; or


 


	 	(h)
    	Merger


 


enter
into any amalgamation, demerger, merger, consolidation or corporate reconstruction other than with another Obligor provided that
where the reconstruction involves the Borrower, the Borrower must be the continuing entity;


 


	 	(i)	Acquisition


 


purchase
or subscribe for shares or securities in another company or acquire a business or an undertaking or any property (or, in each
case, any interest in any of them) unless:


 


	 	(i)	no
    Event of Default has occurred and is continuing or would occur as a result of such acquisition; and
	 	 	 
	 	(ii)	the
    acquisition is a Permitted Acquisition; or


 


	 	(j)	Transfer
    jurisdiction of incorporation


 


transfer
its jurisdiction of incorporation or place of domicile for tax purposes or, in respect of an Obligor incorporated in the United
States of America, change its sole place of business or chief executive office, in each case without the prior written consent
of the Lender;


 


	 	(k)
    	Trustee


 


other
than in relation to the Trustee as trustee of the Trust, become a trustee of any trust;


 




    	61



     


    

 


	 	(l)	Subsidiaries


 


form
or acquire any subsidiary other than where the Borrower complies with clause 22.3(a);


 


	 	(m)	No
    accessions or fixtures


 


allow
any Material Secured Property to become an accession or fixture to any property that is not Secured Property (other than Real
Property or otherwise subject to a security interest in favour of the Lender), or to be affixed to any land (other than any freehold
interest in land in respect of which the Lender has a first ranking registered mortgage) other than in the ordinary course of
business;


 


	 	(n)
    	No
    prejudicial actions or omissions


 


do,
omit to do, or allow to occur, anything that might:


 


	 	(i)	render
    any Secured Property or a security interest created under a Security Document unenforceable or liable to forfeiture or cancellation;
    or
	 	 	 
	 	(ii)	cause
    or contribute to a material deterioration in the value of any Secured Property; or
	 	 	 
	 	(iii)	otherwise
    adversely affect the security of the Lender under any Relevant Document;


 


	 	(o)
    	Change
    of name


 


change
its name without giving at least 14 days prior written notice to the Lender; or


 


	 	(p)
    	No
    processed or commingled goods


 


without
the Lender’s prior written consent, permit any Material Secured Property to be manufactured, processed, assembled or commingled
with anything that is not also Secured Property; and


 


	 	(q)	No
    rights of set-off


 


allow
any of its accounts receivable to be subject to any right of set-off or combination of accounts or another defence or claim (other
than rights that arise solely by operation of law or in the ordinary course of business).


 


	22.6	Trustee
    undertakings


 


The
Trustee must comply in all respects with the undertakings set out in this clause 22.6.


 


	 	(a)	The
    Trust Deed


 


The
Trustee:


 


	 	(i)	must
    comply with the Trust Deed; and
	 	 	 
	 	(ii)	unless
    required by law, must not without the prior written consent of the Lender do anything which results in or could result in
    a variation of, or a supplement to, the Trust Deed, in a way that has or is likely to have a material adverse effect or that
    adversely affects or is likely to adversely affect its rights of indemnity or other rights to apply, use or retain Trust assets
    to satisfy its obligations arising under or in connection with the Finance Documents, or the transactions they contemplate,
    or the Lender’s rights with respect to such rights.


 




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	 	(b)	The
    Trustee’s indemnity


 


The
Trustee must take all steps available to it (including exercising its rights of indemnity and realising or otherwise dealing with
Trust assets) to ensure it is actually indemnified out of Trust assets to discharge any liability arising under or in connection
the Finance Documents or the transactions they contemplate when that liability is payable.


 


	 	(c)	The
    Obligor as trustee


 


The
Trustee must not resign or retire as trustee of the Trust or cause or permit any other person to become an additional trustee
of the Trust or do anything which results in or could result in the retirement, removal or replacement of the Trustee as trustee
of the Trust.


 


	 	(d)	Preserving
    the Trust


 


The
Trustee must not do anything which results in or is reasonably likely to result in:


 


	 	(i)	the
    termination or winding up of the Trust;
	 	 	 
	 	(ii)	the
    resettlement or vesting of any Trust assets that is not permitted by the Finance Documents; or
	 	 	 
	 	(iii)	it
    being disqualified from holding Trust assets.


 


	 	(e)	The
                                         Trust assets



 


The
Trustee must not:


 


	 	(i)	acquire
    any Trust assets other than in the name of the Trustee or any custodian on behalf of the Trust;
	 	 	 
	 	(ii)	do
    anything which effects or facilitates a resettling or vesting of any Trust Assets;
	 	 	 
	 	(iii)	mix
    the Trust assets, or do anything which results in or could result in the Trust assets being mixed, with other property if
    that would restrict or impair in any way its rights of indemnity or other rights to apply, use or retain Trust assets to satisfy
    its obligations arising under or in connection with the Finance Documents or the transactions they contemplate.


 


	 	(f)	Distributions,
    redemptions and remuneration


 


	 	(i)	The
    Trustee must not make any distribution of Trust assets to the unit holders of the Trust, or redeem units in the Trust, except
    where no Event of Default is continuing or would result or where a distribution would be permitted under clause 22.5(d).
	 	 	 
	 	(ii)	The
    Trustee must not take any remuneration for itself out of Trust assets if and for so long as an Event of Default is continuing
    or would result.


 






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	22.7	Undertakings
    in relation to UK Obligors


 


Each
UK Obligors undertakes that it will:


 


		(a)	Centre
                                         of main interests



 


maintain
its centre of main interests in its jurisdiction of incorporation for the purposes of the Insolvency Regulation.


 


		(b)	Pensions
                                         



 


ensure
that:


 





	 	(i)	it
                                         is not or has not been at any time an employer (for the purposes of sections 38 to 51
                                         of the Pensions Act 2004 (UK)) of an occupational pension scheme which is not a money
                                         purchase scheme (both terms as defined in the Pension Schemes Act 1993 (UK)) or “connected”
                                         with or an “associate” of (as those terms are defined in sections 38 or 43
                                         of the Pensions Act 2004) (UK) such an employer;





 


	 	(ii)	it
    shall deliver to the Lender:


 


	 	(A)	at
    such times as those reports are prepared in order to comply with the then current statutory or auditing requirements (as applicable
    either to the trustees of any relevant schemes or to the UK Obligor); and
	 	 	 
	 	(B)	at
    any other time if the Lender reasonably believes that any relevant statutory or auditing requirements are not being complied
    with, actuarial reports in relation to all pension schemes mentioned in clause 22.7(b)(ii)(A) above; and


 


	 	(iii)	it
    shall promptly notify the Lender of any material change in the rate of contributions to any pension scheme mentioned in clause
    22.7(b)(ii)(A) above paid or recommended to be paid (whether by the scheme actuary or otherwise) or required (by law or otherwise).


 


	22.8	Authority
    to auditors


 


Each
Obligor authorises the Lender to discuss its financial statements and financial affairs at any time with the Obligors’ auditors
and financial advisers, and irrevocably authorises and requests its auditors and financial advisers to participate in those discussions
and to provide any information the Lender requests.


 


	22.9	Appointment
    of investigative accountants and auditors


 


If
the Lender reasonably believes that a breach of a Finance Document has occurred or is likely to occur, each Obligor authorises
the Lender, at its discretion, to appoint:


 


	 	(a)	an
    investigative accountant (who may not be a receiver); and/or
	 	 	 
	 	(b)	an
    auditor, in each case including before and after an Event of Default has occurred, to make whatever investigations into the
    Obligors’ financial condition and otherwise that it deems are necessary to determine whether or not a breach has in
    fact occurred or is likely to occur, provided that:



 



    	64



     


    




 


	 	(c)	the
    Lender may only make such an appointment or appointments two times in any year; and
	 	 	 
	 	(d)	the
    costs of such investigation shall be borne by:


 


	 	(i)	the
    Obligors, if a breach has occurred; and
	 	 	 
	 	(ii)	by
    the Lender, if a breach has not occurred.


 


	23.	Events
    of Default


 


	23.1	Events
    of Default


 


An
Event of Default occurs if, at any time and for any reason, whether or not within the control of a party:


 


	 	(a)	Non-payment 




 


an
Obligor fails to pay on its due date any principal or, within three Business Days of its due date, any interest or other amount
payable under any Finance Document; or


 


	 	(b)	Breach of undertaking




 





	 	(i)	an
    Obligor does not comply with any of its obligations under any of the undertakings set out in:



 


	 	(A)	paragraph
    (q) of sub-clause 22.1 (General undertakings);
	 	 	 
	 	(B)	paragraph
    (a) of sub-clause 22.2 (Reporting and information undertakings);
	 	 	 
	 	(C)	sub-clause
    22.3 (Financial undertakings), other than sub-clause 22.3(e) (Actual Sales, Actual Gross Profit Variance to Budget); or


 


	 	(ii)	an
    undertaking given to the Lender or its solicitors by the Obligors in connection with a Finance Document is not complied with.


 


	 	(c)	Breach
    of other obligations


 


an
Obligor fails to comply with any of its other obligations under a Finance Document in any respect that the Lender considers material
and, in the case of a failure that is capable of remedy, that failure is not remedied to the satisfaction of the Lender within
10 Business Days after notice of that failure has been given to the Borrower by the Lender; or


 


	 	(d)	Breach
    of representation


 


a
representation or statement by an Obligor in or in connection with a Finance Document is not true in all material respects, or
is or proves to have been untrue or misleading in any material respect, when made or repeated and, in any case where the underlying
failure causing the breach of representation is capable of remedy, that failure is not remedied to the satisfaction of the Lender
within 10 Business Days after notice of that failure has been given to the Borrower by the Lender; or


 






    	65



     


    

 


	 	(e)	Avoidance
    or repudiation


 


	 	(i)	a
    Finance Document ceases to be in full force and effect or its validity or enforceability is contested by an Obligor; or
	 	 	 
	 	(ii)	an
    Obligor repudiates, or does anything evidencing an intention to repudiate, a Finance Document; or


 


	 	(f)	Insolvency


 


	 	(i)	an
    Obligor:


 


	 	(A)	is
    insolvent or admits or is unable to pay its indebtedness as it falls due, or is deemed to be so under any law; or
	 	 	 
	 	(B)	makes,
    or proposes to make, a compromise, composition, assignment or arrangement with, or for the benefit of, its creditors generally
    in relation to its liabilities or debts; or


 


	 	(ii)	in
    respect of any UK Obligor or an Obligor incorporated or established in Australia, a moratorium or other protection from its
    creditors is declared or imposed in respect of any its indebtedness; or


 


	 	(g)
    	Enforcement


 


	 	(i)	a
    distress, attachment, execution or other legal process is levied against property of an Obligor with a value of in excess
    of the NZ Dollar Equivalent of $500,000 and is not discharged or stayed within 30 days; or
	 	 	 
	 	(ii)	a
    receiver, trustee, manager, administrator or similar officer is appointed in respect of it or any material part of its property;
    or


 


	 	(h)	Amalgamation


 


the
board of an Obligor passes a resolution for, or in contemplation of, an amalgamation of the Obligor with another company (other
than in circumstances where such amalgamation would be permitted under clause 22.5(h) (Merger)); or


 


	 	(i)	Liquidation


 


	 	(i)	any
    corporate action, legal proceedings or other procedure or step is taken in relation to the suspension of payments, a moratorium
    of any indebtedness, winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of
    arrangement or otherwise) of any Obligor except for the purpose of, and followed by, a reconstruction or reorganisation (not
    involving or arising out of insolvency) on terms approved by the Lender before that step is taken; or
	 	 	 
	 	(ii)	an
    order is made, resolution passed or other step taken by a person for the liquidation of an Obligor, or a receiver, administrative
    receiver, administrator, compulsory manager or other similar officer is appointed in respect of any Obligor or any of its
    assets, except for the purpose of, and followed by, a reconstruction or reorganisation (not involving or arising out of insolvency)
    on terms approved by the Lender before that step is taken; or


 






    	66



     


    

 


	 	(j)	Pooling
    of debts


 


an
order is made against an Obligor requiring it to pay the whole or any part of claims made against another company that is in liquidation;


 


	 	(k)	Corporations
    (Investigation and Management) Act 1989


 


an
Obligor is declared at risk pursuant to the Corporations (Investigation and Management) Act 1989, or a statutory manager is appointed
or any step taken with a view to any such appointment in respect of it under that Act; or


 


	 	(l)	Cessation
    of business


 


an
Obligor ceases, or threatens to cease, to conduct all or a substantial part of its business other than in connection with an amalgamation
permitted under clause 22.5(h) or which is approved by the Lender; or


 


	 	(m)	Material
    adverse change


 


any
other event or series of events, whether related or not, occurs, or any circumstances arise or exist which, in the reasonable
opinion of the Lender, has, or is likely to have, a material adverse effect on an Obligor; or


 


	 	(n)	Enforcement
    of security


 


a
security interest in property of an Obligor becomes enforceable; or


 


	 	(o)	Cross
    default


 


any
Finance Debt of an Obligor for an amount not less than the NZ Dollar Equivalent of $500,000:


 


	 	(i)	is
    not paid when due; or
	 	 	 
	 	(ii)	becomes
    due, or capable of being declared due, before it would otherwise have been due;


 


or
a facility for financial accommodation or underwriting facility available to an Obligor is cancelled or suspended by a person
providing it by reason of an event of default (however defined or described); or


 


	 	(p)	Illegality


 


it
is, or will become, unlawful for an Obligor to comply with any of its material obligations under a Finance Document in any material
respect; or


 


	 	(q)	Minority
    buy-out rights


 


an
Obligor agrees to purchase shares of a shareholder or arranges for some other person to agree to purchase those shares on terms
that subject the Obligor to any type of liability or obligation, following receipt by the Obligor of a notice by that shareholder
pursuant to section 111(1) of the Companies Act 1993; or


 






    	67



     


    

 


	 	(r)	Change
    in shareholding


 


any
shares in the capital of an Obligor are transferred by the present holders or there is any change in the proportions in which
shares are held in the capital of an Obligor by the present shareholders, or any of the rights attaching to any of the shares
in the capital of an Obligor are altered, varied, or modified, in each case without the prior written consent of the Lender other
than, in the case of the Parent, a transfer by a person who is a shareholder of the Parent on the date of this Agreement to another
person who is a shareholder of the Parent on the date of this Agreement or to an affiliate of that person provided that:


 


	 	(i)	the
    Lender retains a security interest in the relevant shares or rights; and
	 	 	 
	 	(ii)	no
    change of control of the Parent occurs; or


 


	 	(s)	Meeting
    to consider default action


 


a
meeting of directors or shareholders of an Obligor passes a resolution, the passing or the performance of which would cause an
Event of Default; or


 


	 	(t)	UK
    Pensions


 


the
Pensions Regulator issues a Financial Support Direction or a Contribution Notice to any UK Obligor.


 


	23.2	Consequences


 


On
and after the occurrence of an Event of Default, the Security Documents will become immediately enforceable and the Lender may
at any time, by notice to the Borrower:


 


	 	(a)	cancel
    the Facility; and/or
	 	 	 
	 	(b)	declare
    any or all of the Drawings, any Advance and any other indebtedness of the Borrower under the Finance Documents to be, and
    those Drawings, any Advance and that indebtedness will be, due and payable either immediately or on demand or at such later
    date as the Lender may specify; and/or
	 	 	 
	 	(c)	by
    notice to the Borrower, require the Borrower to deposit with the Lender an amount equal to the aggregate Maximum Liability
    under all outstanding Instruments, in each case such prepayment and deposit to be made immediately (or within any period specified
    by the Lender).


 


	23.3	Enforcement
    despite earlier payment


 


This
Agreement may be enforced:


 


	 	(a)	regardless
    of whether the Lender has accepted a payment of interest or other amount after the occurrence of an Event of Default; and
	 	 	 
	 	(b)	without
    the need for any notice to, or for the consent or agreement of, the Obligors or another person.


 






    	68



     


    

 





	24	Event
    of Review







 


	24.1	Event
    of Review


 


Each
of the events of circumstances set out in this clause 24, whether or not within the control of any Obligor, is an Event of Review:


 


	 	(a)	any
    Obligor whose shares are listed on a registered stock exchange are delisted or suspended for a period greater than 10 trading
    days, other than as a result of a trading halt requested by the relevant Obligor; or
	 	 	 
	 	(b)	if
    any person, either alone or through its related persons acquires directly or indirectly ownership in an Obligor whose shares
    are listed on a registered stock exchange of more than 50% of the issued ordinary shares in the capital of that Obligor; or
	 	 	 
	 	(c)	an
    Obligor does not comply with its obligations under clause 22.3(e) (Actual Sales, Actual Gross Profit Variance to Budget).


 





	24.2	Consequences



 


	 	(a)	At
    any time while an Event of Review subsists, the Lender may, by notice in writing to the Borrower, require that the Borrower
    enter into negotiations with the Lender to determine whether the Lender and the Borrower can agree the basis (if any) on which
    the Lender would continue to provide the Facilities notwithstanding the Event of Review.
	 	 	 
	 	(b)	If
    after 30 days from the date of the notice from the Lender referred to in paragraph (a) above, the Lender and the Borrower
    have not agreed the basis on which the Lender will continue to provide the Facilities, notwithstanding the relevant Event
    of Review, the Lender may, at any time and by not less than 60 days’ notice to the Borrower, cancel each Facility whereupon:


 


	 	(i)	each
    Facility Limit shall be reduced to zero;
	 	 	 
	 	(ii)	the
    Borrower shall pay or prepay all Amounts Outstanding immediately (or within any period specified by the Lender)


 


	25.	Changes
    to the Lender


 


	25.1	Assignment
    by Lender


 


The
Lender may assign or novate any of its rights and obligations under the Finance Documents to another bank or financial institution
with the prior written consent of the Borrower, which:


 


	 	(a)	shall
    not be unreasonably withheld;
	 	 	 
	 	(b)	should
    be deemed to be given if no response is received within 5 business days;
	 	 	 
	 	(c)	shall
    not be required where an Event of Default is continuing; and
	 	 	 
	 	(d)	shall
    not be required where the Lender remains the lender of record.


 




    	69



     


    

 


	25.2	No
    increased costs
	 	 
	 	Notwithstanding
    anything to the contrary in this Agreement, if (other than at the request of the Borrower), the Lender assigns or novates
    any of its rights or obligations under this Agreement, the Obligors will not be required to pay any net increase in the aggregate
    amount payable under this Agreement (including under clauses 16 and 17) that is a direct consequence of that assignment or
    novation and which the Lender or its assignee or novatee was aware, or ought reasonably to have been aware, on the date of
    that assignment or novation.
	 	 
	25.3	Disclosure
    of information
	 	 
	 	The
    Lender may disclose, on a confidential basis, to a potential assignee, novatee, transferee or other person (not being a trade
    competitor of the Group) with whom contractual relations in connection with the Finance Documents are contemplated, any information
    about the Obligors, whether or not that information was obtained in confidence and whether or not that information is publicly
    available. The Lender shall only provide information to another person as contemplated by this clause on terms that oblige
    the recipient to hold the information on a confidential basis for the benefit of each member of the Group.


 


	26.	Changes
    to the Obligors
	 	 
	26.1	Assignment
    by Obligors
	 	 
	 	The
    Obligors may not assign, novate or transfer any of their rights or obligations under a Finance Document without the prior
    written consent of the Lender.
	 	 
	26.2	Additional
    Borrowers


 


The
Borrower may, at any time during the Availability Period and with the prior written consent of the Lender, elect for a subsidiary
to become a Borrower under this Agreement (in this clause, the New Borrower) by executing a Supplemental Deed and delivering
to the Lender:


 


	 	(a)	a
    certificate of a director of the New Borrower, in the form of Schedule 5 where the New Borrower is incorporated in New Zealand
    (or such other form as the Lender may require);
	 	 	 
	 	(b)	duly
    executed Security Documents, in each case in form and substance satisfactory to the Lender (but on the basis that documents
    consistent with the Security Documents entered into as initial conditions precedent will be satisfactory to the Lender), in
    respect of the New Borrower and its property, in favour of the Lender, to secure all of the obligations of the Obligors under
    the Finance Documents;
	 	 	 
	 	(c)	a
    legal opinion in form and substance, and from solicitors, acceptable to the Lender; and
	 	 	 
	 	(d)	all
    other information and documentation reasonably requested by the Lender.


 






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	26.3	Additional
    Guarantors


 


If,
at any time prior to the Termination Date, a new wholly-owned subsidiary is formed or acquired by an Obligor, the Obligors will
procure that such subsidiary becomes a Guarantor under this Agreement (in this clause, the New Guarantor) by delivering
to the Lender:


 


	 	(a)	a
    certificate of a director of the New Guarantor, in the form of Schedule 4 where the New Guarantor is incorporated in New Zealand
    (or such other form as the Lender may require);
	 	 	 
	 	(b)	a
    duly executed Supplemental Deed in the form of Schedule 6;
	 	 	 
	 	(c)	a
    legal opinion in form and substance, and from solicitors, acceptable to the Lender; and
	 	 	 
	 	(d)	all
    other information and documentation reasonably requested by the Lender.


 


	26.4	Additional
    Security Providers


 


If,
at any time prior to the Termination Date, a new wholly-owned subsidiary is formed or acquired by an Obligor, the Obligors will
procure that such subsidiary becomes a Security Provider (unless, at the Borrower’s written request, the Lender agrees otherwise)
under this Agreement (in this clause, the New Security Provider) by delivering to the Lender:


 


	 	(a)	a
    certificate of a director of the New Guarantor, in the form of Schedule 4 where the New Security Provider is incorporated
    in New Zealand (or such other form as the Lender may require);
	 	 	 
	 	(b)	duly
    executed Security Documents, in each case in form and substance satisfactory to the Lender (but on the basis that documents
    consistent with the Security Documents entered into as initial conditions precedent will be satisfactory to the Lender), in
    respect of the New Security Provider and its property, in favour of the Lender, to secure all of the obligations of the Obligors
    under the Finance Documents;
	 	 	 
	 	(c)	a
    legal opinion in form and substance, and from solicitors, acceptable to the Lender; and
	 	 	 
	 	(d)	all
    other information and documentation reasonably requested by the Lender.


 


	26.5	Lender’s
    acceptance


 


When
the Lender is satisfied in all respects with the information and documentation provided to it under clause 26.2 (Additional Borrowers)
and/or clause 26.3 (Additional Guarantors), it will:


 


	 	(a)	countersign
    the Supplemental Deed on behalf of itself, and all other parties to this Agreement; and
	 	 	 
	 	(b)	retain
    one counterpart to the Supplemental Deed and deliver the other counterpart to the Borrower.


 


Each
other party to this Agreement irrevocably authorises the Lender to sign each Supplemental Deed on its behalf. On the Lender’s
execution of the Supplemental Deed, the New Borrower and/or New Guarantor, as the case may be will be bound by the Finance Documents
as if it were an original party to them and named as a Borrower and/or Guarantor, as the case may be.


 






    	71



     


    

 


	27.	Payment
    mechanics
	 	 
	27.1	Business
    days









 


Where
a payment under this Agreement is due on a day that is not a Business Day, the due date will be the next Business Day (unless
the next Business Day falls in another calendar month, in which case the due date will be the previous Business Day).


 


	27.2	Mode



 


Each
payment to the Lender under a Finance Document is to be made on the due date by 2.00pm (local time in the place of payment) in
immediately available freely transferable funds in the manner and to the account at the bank that the Lender, by notice to the
Borrower, specifies from time to time. If a payment is made on the due date but after the specified time, the Borrower will pay
to the Lender, on request, interest on the amount paid until the next Business Day (as if the payment were made on the later day).


 


	27.3	Payments
    to be free and clear



 


Each
payment by the Obligors to the Lender under a Finance Document will be made:


 





		(a)	free
                                         of any restriction or condition; and
	 	 	 
		(b)	free
                                         and clear of and (except to the extent required by law) without any deduction or withholding
                                         for or on account of tax or on any other account, whether by way of set-off, counterclaim
                                         or otherwise.



 


	27.4	Reinstatement




 


If
a payment made by an Obligor pursuant to a Finance Document is avoided by law:


 


		(a)	that
                                         payment will be deemed not to have discharged or affected the relevant obligation of
                                         the Obligors; and
	 	 	 
		(b)	the
                                         Lender and the Obligors will be deemed to be restored to the position in which each would
                                         have been if that payment had not been made.



 


	28.	Set-off
    and deposits
	 	 
	28.1	Set-off



 


Each
Obligor authorises the Lender to apply (without prior notice or demand) any credit balance of that Obligor on any account in any
currency and at any of its offices in or towards satisfaction of any indebtedness then due to it under a Finance Document and
unpaid. If, at any time an Event of Default is continuing, an amount is contingently due, or an amount due is not quantified,
the Lender may retain and withhold repayment of any such credit balance and the payment of interest or other money pending that
amount becoming due and/or being quantified, and may set-off the maximum liability that may at any time be owing to it by an Obligor.
The Lender:


 


	 	(a)	may
    use any credit balance to buy other currencies and may break any term deposit to effect that application; and
	 	 	 
	 	(b)	need
    not exercise its rights under this sub-clause, which are without prejudice and in addition to its rights under each other
    Finance Document and any other right of set-off, combination of accounts, lien or other right to which it is at any time otherwise
    entitled (by law or contract).






 






    	72



     


    

 


	28.2	Contractual
    rights






 


The
rights of the Lender under this clause are contractual rights affecting the terms on which a credit balance is held and the creation
of those rights does not constitute the creation of a security interest in that credit balance.


 


	29.	Power
    of Attorney








		









 


Each
Obligor hereby irrevocably appoints the Lender and every authorised officer of the Lender, its true and lawful attorney both jointly
and severally, during and after the termination of this Agreement, in the Obligor’s name to execute all documents and do
all things required in order to give effect to the provisions of this Agreement including (without limitation) the execution of
all assurances, acts and deeds referred to in clause 22.1(h):


 


The
Lender and its authorised officers shall not exercise any rights under this clause unless:


 


		(a)	an
                                         Event of Default is continuing; or
	 	 	 
		(b)	the
                                         Obligors have failed to do something they are required to do under this Agreement within
                                         five Business Days of being requested to do so.



 


	30.	Calculations
    and evidence
	 	 
	30.1	Basis
    of calculation



 


All
interest will accrue from day to day and will be calculated on the basis of the number of days elapsed and a 365 day year for
amounts in NZ$, GBP or AUD and 360 days for amounts in USD or EUR.


 


Interest
in respect of each Interest Period will accrue from (and including) its first day to (but excluding) its last.


 


	30.2	Accounts






 


The
entries made in the accounts maintained by the Lender are conclusive evidence (absent manifest error) of the existence and amounts
of the obligations of the Obligors recorded in them.


 


	30.3	Certificates
    conclusive









 


A
certificate by the Lender of an interest rate, exchange rate or amount payable under this Agreement is conclusive evidence (absent
manifest error) for all purposes, including for any proceedings.


 






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	31.	Remedies
    and waivers
	 	 
	31.1	Exercise
    of rights and waivers



 


Time
is of the essence in respect of all dates and times for compliance by the Relevant Parties with their obligations under each Finance
Document. However, no failure to exercise, and no delay in exercising, a right of the Lender under a Finance Document will operate
as a waiver of that right, nor will a single or partial exercise of a right preclude another or further exercise of that right
or the exercise of another right. No waiver by the Lender of its rights under a Finance Document is effective unless it is in
writing signed by the Lender.


 


	31.2	Remedies
    cumulative



 


The
rights of the Lender under the Finance Documents are cumulative and not exclusive of any rights provided by law.


 


	32.	Notices
	 	 
	32.1	General






 


In
connection with any notice or other communication (a Communication) made by an Obligor to the Lender under any Finance Document,
the Lender:


 


		(a)	may
                                         take the Communication at face value, and has no obligation to take any steps to ensure
                                         it was sent by the person it was purported to be sent by;
	 	 	 
		(b)	has
                                         no obligation to act on any incorrect or incomplete Communication, or any Communication
                                         that does not comply with any agreed process; and
	 	 	 
		(c)	is
                                         authorised to accept any electronic mail address, facsimile number or personal delivery
                                         address advised to it from time to time by an authorised signatory of an Obligor.



 


	32.2	Addresses



 


Each
notice or other communication under this Agreement will be made in writing and sent by electronic mail, facsimile, personal delivery
or by post to the addressee at the electronic mail address, facsimile number or address, and marked for the attention of the person
or office holder (if any), from time to time designated for the purpose by the addressee to the other party. The initial electronic
mail address, facsimile number, address and relevant person or office holder of each party is set out under its name at the end
of this Agreement.


 






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	32.3	Delivery



 





	 	(a)	General



 


No
communication will be effective until received. A communication to the Obligors is, however, deemed to be received:


 





	 	(i)	in
                                         the case of a letter, on the third Business Day after posting;
	 	 	 
		(ii)	in
                                         the case of a facsimile, on the Business Day on which it is despatched or, if despatched
                                         after 5.00 p.m. (in the place of receipt) on a Business Day or on a non-Business Day,
                                         on the next Business Day after the date of despatch; and
	 	 	 
		(iii)	in
                                         the case of an electronic mail, when it is actually received in readable form.



 


A
communication to the Obligors, or any of them, is deemed to be received when it is deemed to be received by the Borrower in accordance
with this clause.


 


	 	(b)	Electronic
    mail



 


Electronic
mail to the Lender must:


 


		(i)	be
                                         sent from a contact of the relevant Obligor authorised by the Lender to communicate by
                                         electronic mail;
	 	 	 
		(ii)	be
                                         sent to the exact electronic mail address specified by the Lender from time to time;
                                         and
	 	 	 
		(iii)	in
                                         the case of a Drawing Notice, attach a pdf copy of the original Drawing Notice, signed
                                         by an authorised signatory of the Obligor.



 


All
parties acknowledge the risk of receiving non-encrypted electronic mail containing confidential information that may also be privileged
and accept that:


 





		(iv)	the
                                         Lender shall not be responsible for unauthorised access and/or alteration to any electronic
                                         mail, nor for the consequences arising as a result of use of information that may have
                                         been illegitimately accessed or altered, except in the case of gross negligence or wilful
                                         misconduct of the Lender; and
	 	 	 
		(v)	the
                                         Lender has no obligation to look behind an instruction to check that it was sent by the
                                         person it was purported to be sent by, or to act on incorrect or incomplete instructions.






 


	32.4	Borrower


 


	 	(a)	By
    signing this Agreement, or a Supplemental Deed, each Obligor irrevocably appoints the Borrower to act on its behalf as its
    agent in relation to the Finance Documents and irrevocably authorises:


 


	 	(i)	the
    Borrower on its behalf to supply all information concerning itself contemplated by the Finance Documents to the Lender and
    to give all notices and instructions without further reference to the consent of that Obligor; and
	 	 	 
	 	(ii)	the
    Lender to give any notice, demand or other communication to that Obligor pursuant to the Finance Documents to the Borrower,


 


and
in each case the Obligor shall be bound as though the Obligor itself had given the notices and instructions, and received the
relevant notices, demands or other communications.


 


	 	(b)	In
    the event of any conflict between any notices or other communications of the Borrower and any other Obligor, those of the
    Borrower will prevail.


 






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	33.	Australian
    PPSA provisions
	 	 
	33.1	Exclusion
    of certain provisions


 


Where
the Lender has a security interest (as defined in the Australian PPSA) under any Finance Document, to the extent the law permits:


 


	 	(a)	for
    the purposes of sections 115(1) and 115(7) of the Australian PPSA:


 


	 	(i)	the
    Lender need not comply with sections 95, 118(1)(b), 121(4), 125, 130, 132(3)(d) or 132(4) of the Australian PPSA; and
	 	 	 
	 	(ii)	sections
    142 and 143 of the Australian PPSA are excluded;


 


	 	(b)
    	for
    the purposes of section 115(7) of the Australian PPSA, the Lender need not comply with sections 132 and 137(3);
	 	 	 
	 	(c)	each
    party waives its right to receive from the Lender any notice required under the Australian PPSA (including a notice of a verification
    statement);
	 	 	 
	 	(d)	if
    the Lender exercises a right, power or remedy in connection with it, that exercise is taken not to be an exercise of a right,
    power or remedy under the Australian PPSA unless the Lender states otherwise at the time of exercise. However, this clause
    does not apply to a right, power or remedy which can only be exercised under the Australian PPSA; and
	 	 	 
	 	(e)	if
    the Australian PPSA is amended to permit the parties to agree not to comply with or to exclude other provisions of the PPSA,
    the Lender may notify the Borrower that any of these provisions is excluded, or that the Finance Parties need not comply with
    any of these provisions.


 


This
does not affect any rights a person has or would have other than by reason of the Australian PPSA and applies despite any other
clause in any Finance Document.


 


	33.2	Further
    assurances


 


Whenever
the Lender requests an Obligor to do anything:


 


	 	(a)	to
    ensure any Finance Document (or any security interest (as defined in the Australian PPSA) or other security interest under
    any Finance Document) is fully effective, enforceable and perfected with the contemplated priority;
	 	 	 
	 	(b)	for
    more satisfactorily assuring or securing to the Lender the property the subject of any such security interest or other security
    interest in a manner consistent with the Finance Documents; or
	 	 	 
	 	(c)	for
    aiding the exercise of any power in any Finance Document, the Obligor shall do it promptly at its own cost. This may include
    obtaining consents, signing documents, getting documents completed and signed and supplying information, delivering documents
    and evidence of title and executed blank transfers, or otherwise giving possession or control with respect to any property
    the subject of any security interest or Security.





 



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	34.	Miscellaneous
	 	 
	34.1	Impossibility


 


The
Lender will not be liable for any failure to perform or comply with its obligations under this Agreement resulting directly or
indirectly from the action or inaction of a governmental or local authority, strike, labour disturbance (whether of its employees,
officers or otherwise) or any other cause that is beyond its control.


 


	34.2	Anti
    money laundering


 


	 	(a)
    	The
    Borrower agrees that the Lender may delay, block or refuse to process any transaction without incurring any liability if it
    is suspected that:


 


	 	(i)	the
    transaction may breach any laws or regulations in New Zealand or any other country;
	 	 	 
	 	(ii)	the
    transaction involves any person (natural, corporate or governmental) that is itself sanctioned or is connected, directly or
    indirectly, to any person that is sanctioned under economic and trade sanctions imposed by the United States, the United Nations,
    the European Union or any country; or
	 	 	 
	 	(iii)	the
    transaction may directly or indirectly involve the proceeds of, or be applied for the purposes of, conduct that is unlawful
    in New Zealand or any other country.


 


	 	(b)
    	The
    Borrower must (and must procure that each other Obligor will) provide all information to the Lender that the Lender reasonably
    requires in order to manage its money-laundering, terrorism-financing or economic and trade sanctions risk or to comply with
    any laws or regulations in New Zealand or any other country. The Borrower agrees that the Lender may disclose any information
    concerning the Obligors to any law enforcement, regulatory agency or court where required by any such law or regulation in
    New Zealand or elsewhere.


 


	34.3	Benefit
    and burden of this Agreement


 


This
Agreement is binding on and enures for the benefit of the parties and their respective successors and their permitted assignees,
novatees and transferees.


 


	34.4	Amendments


 


No
amendment to this Agreement is effective unless it is in writing signed by all the parties.


 


	34.5	Partial
    invalidity


 


The
illegality, invalidity or unenforceability of a provision of this Agreement under any law will not affect the legality, validity
or enforceability of that provision under another law or the legality, validity or enforceability of another provision.


 


	34.6	Conflict
    of interests


 


The
Lender or a Receiver may exercise or agree to exercise a right given by this Agreement or by law, even though that person may
have a conflict of interest in exercising such right.


 




    	77



     


    

 


	34.7	Consents


 


Unless
otherwise specified in this Agreement or expressly stated otherwise in a Finance Document, the Lender may give or withhold any
approval or consent in that person’s absolute discretion, and either conditionally or unconditionally.


 


	34.8	Counterparts


 


This
Agreement may be signed in any number of counterparts all of which, when taken together,
will constitute one and the same instrument. A party may enter into this Agreement by executing any counterpart.


 


	34.9	Inconsistency


 


In
the event of any inconsistency between the provisions of this Agreement and the provisions of any other Finance Document, the
provisions of this Agreement will prevail.


 


	34.10
    	Entire
    Agreement


 


This
Agreement, together with each other agreement made in writing signed by all the parties, constitutes the entire agreement between
the parties.


 


	35.	Governing
    law


 


	35.1	Governing
    law


 


This
Agreement is governed by, and is to be construed in accordance with, New Zealand law.


 


	35.2	Service
    of process


 


Without
prejudice to any other mode of service allowed under any relevant law, each Obligor (other than an Obligor incorporated in New
Zealand):


 


	 	(a)	irrevocably
    appoints the Borrower as its agent for service of process in relation to any proceedings in connection with any Finance Document;
    and
	 	 	 
	 	(b)	agrees
    that failure by a process agent to notify the relevant Obligor of the process will not invalidate the proceedings concerned.


 




    	78



     


    

 


Execution


 


Executed
as a Deed


 


[Execution
blocks intentionally deleted]


 




    	79