Exhibit 10.1


 


Channell
Bushman Pty Limited


ABN 99
109 821 614


 


Australian
Executor Trustees Limited


ABN 84
007 869 794


 


and


 


each
entity listed in Schedule 1 of this document


 


Facility Agreement


 


 


	
  

  
	
   

  
	
  

  



 


	
  www.sparke.com.au

  	
   

  	
  adelaide
  brisbane canberra melbourne newcastle perth sydney upper hunter

  



 

















 


Table
of Contents


 


	
  1

  	
  Thce Facility

  	
  1

  
	
   

  	
  1.1

  	
  Accessing the
  Facility

  	
  1

  
	
   

  	
  1.2

  	
  Purpose

  	
  2

  
	
  2

  	
  Conditions precedent

  	
  2

  
	
   

  	
  2.1

  	
  Conditions
  precedent to the first Advance

  	
  2

  
	
   

  	
  2.2

  	
  Conditions
  precedent to all Advances

  	
  2

  
	
   

  	
  2.3

  	
  Certified
  copies

  	
  3

  
	
   

  	
  2.4

  	
  Benefit of
  conditions precedent

  	
  3

  
	
  3

  	
  Drawdown Procedures

  	
  3

  
	
   

  	
  3.1

  	
  Drawdown
  Notices

  	
  3

  
	
   

  	
  3.2

  	
  Number and
  frequency of requests

  	
  3

  
	
   

  	
  3.3

  	
  Automatic
  cancellation

  	
  3

  
	
  4

  	
  Interest

  	
  4

  
	
   

  	
  4.1

  	
  Rate

  	
  4

  
	
   

  	
  4.2

  	
  Calculation

  	
  4

  
	
   

  	
  4.3

  	
  Payment

  	
  4

  
	
   

  	
  4.4

  	
  Margin
  Reduction

  	
  4

  
	
  5

  	
  Repayment, prepayment and cancellation

  	
  5

  
	
   

  	
  5.1

  	
  Repayment of
  the Advances

  	
  5

  
	
   

  	
  5.2

  	
  Termination
  Date

  	
  5

  
	
   

  	
  5.3

  	
  Voluntary
  prepayment or repayment

  	
  5

  
	
   

  	
  5.4

  	
  Mandatory
  prepayment – full

  	
  6

  
	
   

  	
  5.5

  	
  Mandatory
  prepayment – partial

  	
  6

  
	
   

  	
  5.6

  	
  Miscellaneous

  	
  6

  
	
  6

  	
  Default Interest

  	
  7

  
	
   

  	
  6.1

  	
  Default
  Interest

  	
  7

  
	
   

  	
  6.2

  	
  Further
  interest

  	
  7

  
	
   

  	
  6.3

  	
  Accrual of
  default interest

  	
  7

  
	
   

  	
  6.4

  	
  Obligation to
  pay unaffected

  	
  7

  
	
  7

  	
  Payments

  	
  7

  
	
   

  	
  7.1

  	
  Manner of
  payment

  	
  7

  
	
   

  	
  7.2

  	
  Amounts
  payable on demand

  	
  8

  
	
   

  	
  7.3

  	
  No set-off or
  deductions

  	
  8

  
	
   

  	
  7.4

  	
  Additional
  payments

  	
  8

  
	
   

  	
  7.5

  	
  Taxation
  deduction procedures

  	
  8

  
	
   

  	
  7.6

  	
  Application of
  Moneys

  	
  9

  
	
  8

  	
  Representations and warranties

  	
  9

  
	
   

  	
  8.1

  	
  General
  representations and warranties

  	
  9

  
	
   

  	
  8.2

  	
  Repetition of
  representations and warranties

  	
  16

  
	
   

  	
  8.3

  	
  Reliance on
  representations and warranties

  	
  16

  
	
  9

  	
  General undertakings

  	
  16

  
	
   

  	
  9.1

  	
  Term of
  undertakings

  	
  16

  
	
   

  	
  9.2

  	
  Authorisations
  and Status Undertakings

  	
  16

  
	
   

  	
  9.3

  	
  Disposals and
  Security Undertakings

  	
  17

  
	
   

  	
  9.4

  	
  Acquisition
  and Investment Undertakings

  	
  18

  
	
   

  	
  9.5

  	
  Financing
  Arrangement Undertakings

  	
  18

  
	
   

  	
  9.6

  	
  Conduct of
  Business Undertakings

  	
  19

  
	
   

  	
  9.7

  	
  Environmental
  Undertakings

  	
  20

  
					



 

















 


	
   

  	
  9.8

  	
  Transaction
  Document

  	
  21

  
	
   

  	
  9.9

  	
  Share Capital,
  Dividend

  	
  21

  
	
   

  	
  9.10

  	
  Information
  and Accounting Undertakings

  	
  22

  
	
   

  	
  9.11

  	
  Corporations
  Act

  	
  25

  
	
   

  	
  9.12

  	
  Lessor’s Consent

  	
  26

  
	
   

  	
  9.13

  	
  Financial
  Covenants

  	
  26

  
	
   

  	
  9.14

  	
  Financial
  Definitions

  	
  26

  
	
   

  	
  9.15

  	
  Calculation

  	
  29

  
	
  10

  	
  Changes to Obligors and Security

  	
  29

  
	
   

  	
  10.1

  	
  Additional
  Guarantors

  	
  29

  
	
   

  	
  10.2

  	
  Future
  Security

  	
  30

  
	
  11

  	
  Default

  	
  30

  
	
   

  	
  11.1

  	
  Events of
  Default

  	
  30

  
	
   

  	
  11.2

  	
  Consequences
  of Event of Default

  	
  33

  
	
   

  	
  11.3

  	
  Continue to
  perform

  	
  33

  
	
   

  	
  11.4

  	
  Liability

  	
  33

  
	
  12

  	
  Preserving the Lender’s Rights, Powers and Remedies

  	
  33

  
	
   

  	
  12.1

  	
  Preservation

  	
  33

  
	
   

  	
  12.2

  	
  Moratorium
  legislation

  	
  34

  
	
   

  	
  12.3

  	
  Reinstating or
  replacing rights

  	
  34

  
	
   

  	
  12.4

  	
  Effect of
  release

  	
  34

  
	
  13

  	
  Guarantee and Indemnity

  	
  34

  
	
   

  	
  13.1

  	
  Guarantee

  	
  34

  
	
   

  	
  13.2

  	
  Payment

  	
  35

  
	
   

  	
  13.3

  	
  Securities for
  other money

  	
  35

  
	
   

  	
  13.4

  	
  Amount of
  Money Owing

  	
  35

  
	
   

  	
  13.5

  	
  Proof by
  Lender

  	
  35

  
	
   

  	
  13.6

  	
  Avoidance of
  payments

  	
  35

  
	
   

  	
  13.7

  	
  Indemnity for
  avoidance of Money Owing

  	
  36

  
	
   

  	
  13.8

  	
  No obligation
  to marshal

  	
  37

  
	
   

  	
  13.9

  	
  Non-exercise
  of Guarantors’ rights

  	
  37

  
	
   

  	
  13.10

  	
  Principal and
  independent obligation

  	
  37

  
	
   

  	
  13.11

  	
  Suspense
  account

  	
  38

  
	
   

  	
  13.12

  	
  Unconditional
  nature of obligations

  	
  38

  
	
   

  	
  13.13

  	
  No competition

  	
  40

  
	
   

  	
  13.14

  	
  Continuing
  guarantee

  	
  41

  
	
   

  	
  13.15

  	
  Variation

  	
  42

  
	
   

  	
  13.16

  	
  Judgments

  	
  42

  
	
  14

  	
  Change in Circumstances

  	
  42

  
	
   

  	
  14.1

  	
  Increased
  Costs

  	
  42

  
	
   

  	
  14.2

  	
  Illegality

  	
  43

  
	
   

  	
  14.3

  	
  Mitigation

  	
  43

  
	
  15

  	
  Set-off

  	
  44

  
	
   

  	
  15.1

  	
  Set-off rights

  	
  44

  
	
   

  	
  15.2

  	
  Unliquidated
  claims

  	
  44

  
	
  16

  	
  Indemnities

  	
  44

  
	
   

  	
  16.1

  	
  Indemnity

  	
  44

  
	
   

  	
  16.2

  	
  Continuing
  indemnities

  	
  45

  
	
  17

  	
  Fees Tax and costs

  	
  45

  
	
   

  	
  17.1

  	
  Fees

  	
  45

  
	
   

  	
  17.2

  	
  Tax

  	
  46

  



 


 

















 


	
   

  	
  17.3

  	
  GST

  	
  46

  
	
   

  	
  17.4

  	
  Costs and
  expenses

  	
  47

  
	
  18

  	
  Assignment or novation

  	
  47

  
	
   

  	
  18.1

  	
  Assignment by
  Obligors

  	
  47

  
	
   

  	
  18.2

  	
  Assignment by
  Lender

  	
  47

  
	
   

  	
  18.3

  	
  Disclosure of
  Information

  	
  47

  
	
   

  	
  18.4

  	
  Transfers by
  Lender

  	
  47

  
	
   

  	
  18.5

  	
  Assist

  	
  48

  
	
  19

  	
  Miscellaneous

  	
  48

  
	
   

  	
  19.1

  	
  Notices

  	
  48

  
	
   

  	
  19.2

  	
  Governing law

  	
  49

  
	
   

  	
  19.3

  	
  Financier’s
  statement conclusive

  	
  49

  
	
   

  	
  19.4

  	
  Amendment

  	
  49

  
	
   

  	
  19.5

  	
  Invalidity

  	
  49

  
	
   

  	
  19.6

  	
  Waivers

  	
  49

  
	
   

  	
  19.7

  	
  Entire
  agreement

  	
  50

  
	
   

  	
  19.8

  	
  Further
  assurance

  	
  50

  
	
   

  	
  19.9

  	
  Counterparts

  	
  50

  
	
   

  	
  19.10

  	
  Attorneys

  	
  50

  
	
  20

  	
  Definitions and interpretation

  	
  50

  
	
   

  	
  20.1

  	
  Definitions

  	
  50

  
	
   

  	
  20.2

  	
  Construction

  	
  63

  
	
   

  	
  20.3

  	
  Other
  References

  	
  64

  
	
   

  	
  20.4

  	
  Business Day

  	
  66

  
	
   

  	
  20.5

  	
  Lender’s
  limitation of liability

  	
  66

  
	
   

  	
  20.6

  	
  McLaughlins
  Financial Services Limited limitation of liability

  	
  66

  
	
  Signing page

  	
  69

  
	
  Schedule 1

  	
  Guarantors

  	
  72

  
	
  Schedule 2

  	
  Conditions precedent

  	
  73

  
	
  Schedule 3

  	
  Officer’s Certificate

  	
  75

  
	
  Schedule 4

  	
  Drawdown Notice

  	
  77

  
	
  Schedule 5

  	
  Group Structure Diagram

  	
  79

  
	
  Schedule 6

  	
  Borrowing Base Certificate

  	
  80

  
	
  Schedule 7

  	
  Compliance Certificate

  	
  81

  
	
  Schedule 8

  	
  Accession Document

  	
  83

  



 

















 


Facility
Agreement


 


	
  Date

  	
   

  	
  3 October 2007

  
	
   

  	
   

  	
   

  
	
  Parties

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name

  	
   

  	
  Australian Executor Trustees Limited ABN 84 007
  869 794 as custodian for the Causeway Australasian
  Private Debt Opportunities Fund ARSN 125 168 587 (Lender)

  
	
   

  	
   

  	
   

  
	
  Address

  	
   

  	
  c/-
  MFS Causeway, Level 5, 56 Pitt Street, Sydney, NSW, 2000

  
	
   

  	
   

  	
   

  
	
  Fax
  number:

  	
   

  	
  (02)
  9252 6201

  
	
   

  	
   

  	
   

  
	
  Attention:

  	
   

  	
  Managing Director

  
	
   

  	
   

  	
   

  
	
  Name

  	
   

  	
  Channell
  Bushman Pty Limited ABN 99 109 821 614 (Borrower)

  
	
   

  	
   

  	
   

  
	
  Address

  	
   

  	
  2
  Healey Circuit, Huntingwood, NSW, 2148

  
	
   

  	
   

  	
   

  
	
  Fax
  number:

  	
   

  	
  02
  8814 8841

  
	
   

  	
   

  	
   

  
	
  Attention:

  	
   

  	
  George
  Apostolidis

  



 


Each
entity listed in Schedule 1 of this document (each an Original
Guarantor).


 


Background


 


	
  A.

  	
   

  	
  The Borrower has asked the Lender to
  provide it with a Senior Secured Cash Advance Facility of up to $13,000,000
  for a term of approximately 3 years, from the date of this agreement until 30
  September 2010.

  
	
   

  	
   

  	
   

  
	
  B.

  	
   

  	
  The Lender has agreed to provide that
  financial accommodation to the Borrower on the terms and conditions set out
  in the Finance Documents.

  



 


1              The Facility


 


1.1          Accessing
the Facility


 


(a)           The
Lender makes the Facility available to the Borrower by way of the following
Advances on the terms of this agreement:


 


(1)           one
Tranche A Advance; and


 


(2)           Tranche
B Advances.


 


(b)           The maximum amount
available to the Borrower under:


 


1





















 


(1)           Tranche
A is the Tranche A Limit;


 


(2)           Tranche
B is the Tranche B Limit; and


 


(3)           the
Facility is the Facility Limit.


 


1.2          Purpose


 


All
Advances under:


 


(a)           Tranche
A must be used by the Borrower, by way of a single Advance, to partially repay
the Existing Financial Indebtedness; and


 


(b)           Tranche B must be used by
the Borrower:


 


(1)           to
repay the balance of the Existing Financial Indebtedness in an amount of up to
$3,500,000; and


 


(2)           for
general working capital purposes of the Obligors.


 


2              Conditions precedent


 


2.1          Conditions
precedent to the first Advance


 


The Lender is not obliged to fund the first Advance
unless the Lender has received all of the documents and information specified
in Schedule 2 in form and substance satisfactory to it (or the Lender is
satisfied that, immediately after the making of the Advance, it will receive
those documents and that information in form and substance satisfactory to it).


 


2.2          Conditions
precedent to all Advances


 


The Lender is not obliged to fund any Advance unless
the following conditions are fulfilled to the Lender’s satisfaction:


 


(a)           (Drawdown
Notice): the Borrower has delivered a Drawdown Notice to the Lender
requesting the Advance in accordance with this agreement;


 


(b)           (Drawdown
Date): the Drawdown Date for the Advance is a Business Day within
the relevant Availability Period;


 


(c)           (Drawdown
Amount): the Advance is at least $100,000 and is an integral
multiple of $10,000;


 


(d)           (Limits):
the Tranche A Limit, the Tranche B Limit or the Facility Limit will not be
exceeded by providing the Advance;


 


(e)           (Borrowing
Base): in respect of any Tranche B Advance, evidence that clause
9.13(c) has been complied with and will not be breached by the Advance being
provided;


 


2





















 


(f)           (no default): no Default has occurred which is subsisting and
no Default will result from the Advance being provided; and


 


(g)          (certificates): such other certificates, approvals, evidence,
documents and information in relation to any Transaction Document or Obligor
that the Lender may reasonably require.


 


2.3          Certified
copies


 


An Authorised Representative of the Borrower must
certify a copy of a document given to the Lender under this clause 2 to be
a true, complete and up-to-date copy of the original document. The
certification must be made no more than 5 Business Days before the date on
which it is provided.


 


2.4          Benefit
of conditions precedent


 


A condition in this clause 2 is for the benefit of the
Lender and only the Lender may waive it.


 


3              Drawdown Procedures


 


3.1          Drawdown
Notices


 


(a)           To utilise the Facility the
Borrower must deliver to the Lender a duly completed Drawdown Notice not later
than 10.00 am three Business Days before the proposed Drawdown Date.


 


(b)           Each Drawdown Notice
delivered to the Lender must be in writing substantially in the form of, and
specifying (or attaching as appropriate) the matters required in,
Schedule 4.


 


(c)           A Drawdown Notice once
given may not be withdrawn or revoked.


 


3.2          Number
and frequency of requests


 


(a)           No more than 1 Tranche A
Advance may be requested by the Borrower.


 


(b)           No more than 2 Tranche B
Advances may be requested by the Borrower in each calendar month other than as
otherwise agreed by the Lender.


 


3.3          Automatic
cancellation


 


(a)           On the
last day of each Availability Period, the undrawn portion of the relevant
tranche will be automatically cancelled and the Tranche A Limit or Tranche B
Limit (as applicable) and the Facility Limit will be reduced by the amount of
the undrawn portion.


 


(b)           Each Obligor will have no
claim against the Lender because of the cancellation including, a claim for
costs or expenses incurred or


 


3





















 


damages
sustained by the Obligors in relation to the Facility or arising from or in
connection with the cancellation of the Facility.


 


4              Interest


 


4.1          Rate


 


Subject to clause 4.3, the Borrower must pay interest
on an Advance for each Interest Period at a rate equal to the Interest Rate.


 


4.2          Calculation


 


Interest will accrue daily from and including the
first day which an Advance is provided until that Advance is repaid and be
calculated on the basis of a 365 day year.


 


4.3          Payment


 


The
Borrower will pay interest accrued on each Advance to the Lender in arrears on
the last day of each calendar month.


 


4.4          Margin
Reduction


 


(a)           Subject to clause 4.4(b)
and (c), the Margin payable in respect of Tranche A Advances and Tranche B
Advances will be reduced by 1.00% per annum (Margin
Reduction) if:


 


(1)           on 30
June 2008, EBITDA for the previous 12 month period is at least $6,000,000; or


 


(2)           on 31
December 2008, EBITDA for the previous 12 month period is at least $6,250,000.


 


(b)           The Margin Reduction:


 


(1)           is not
cumulative and will only occur once, to a maximum Margin Reduction of 1.00% per
annum, unless otherwise agreed by the Lender;


 


(2)           will
not occur if an Event of Default is subsisting; and


 


(3)           will
apply from the first Interest Period following the production of the relevant
Financial Statements in accordance with clause 9.10(c) showing that the
Borrower has complied with one of the tests set out in clause 4.4(a)(1) or (2).


 


(c)           In this clause, ‘EBITDA’
(and its constituent definitions) have the same meaning as in clause 9.14 and
EBITDA is to be calculated in accordance with clause 9.15.


 


4





















 


5              Repayment, prepayment and cancellation


 


5.1          Repayment
of the Advances


 


(a)           Subject
to clauses 5.1(b) and 5.5, the Borrower must repay the Principal Outstanding
under Tranche A in equal monthly instalments of $160,000 commencing on 31 March
2008 and on the last day of each calendar month thereafter until (and
including) the Termination Date.


 


(b)          The
Borrower must repay the Principal Outstanding from time to time to ensure that
it complies at all times with its obligations under clause 9.13 (Financial
Covenants).


 


5.2          Termination
Date


 


The Borrower must repay all Money Owing under or in
connection with the Finance Documents on or prior to the Termination Date.


 


5.3          Voluntary
prepayment or repayment


 


(a)           Subject to clause 5.3(b),
the Borrower may not make any partial prepayments in respect of Tranche A.


 


(b)          The
Borrower may prepay all of the Principal Outstanding or repay any part of the
Principal Outstanding in respect of Tranche B, provided that:


 


(1)           the
Lender has received at least:


 


(A)          10 Business Days’ prior notice from the
Borrower if the prepayment is all of the Principal Outstanding; or


 


(B)           3 Business Days’ prior notice from the
Borrower if the repayment is part of the Principal Outstanding in respect of
Tranche B,


 


in each case, specifying the proposed date and amount of the prepayment
or repayment;


 


(2)           if a
partial repayment of Tranche B, the repayment is in a minimum amount of
$100,000 and, if greater, an integral multiple of $10,000;


 


(3)           no
more than 2 repayments per calendar month are permitted in respect of Tranche
B;


 


(4)           the
Advance or part of the Advance being repaid has been outstanding for at least
30 days from the relevant Drawdown Date;


 


5





















 


(5)           if the
prepayment is in respect of Tranche A, the amount prepaid is not available to
be redrawn and the Tranche A Limit and Facility Limit is cancelled and reduced
by the amount of the prepayment;


 


(6)           if the
prepayment is in respect of Tranche B, the amount prepaid is available to be
redrawn and may be redrawn in accordance with this agreement; and


 


(7)           the
Borrower must pay the Prepayment Fee (if applicable).


 


(c)           The Borrower must prepay
the Principal Outstanding specified in the prepayment notice on the prepayment
date specified in the notice together with all unpaid interest accrued to the
prepayment date in respect of that prepaid amount.


 


(d)           A notice given under clause
5.3(b) may not be withdrawn or revoked.


 


5.4          Mandatory
prepayment – full


 


If the Tranche A Limit reduces to zero or a Listing or
Change in Control occurs:


 


(a)           all of the Lender’s
commitments under the Facility will immediately be cancelled and reduced to
zero; and


 


(b)           the Borrower will
immediately prepay all Money Owing.


 


5.5          Mandatory
prepayment – partial


 


The Borrower will procure that the net proceeds of any
disposal of any part of the motor vehicle fleet owned by the Group in
accordance with clause 9.3(a)(4), is applied in prepayment of the Principal
Outstanding under Tranche A (any such prepayments will be applied to reduce
instalments payable under clause 5.1 on a pro rata basis).


 


5.6          Miscellaneous


 


(a)           Any repayment or prepayment
under this agreement must be accompanied by accrued interest on the amount
repaid or prepaid and, in the case of a prepayment of all of the Principal
Outstanding, any other amount then due under this agreement.


 


(b)           No prepayment of an Advance
or cancellation of any portion of the Facility may be made except in accordance
with this agreement.


 


6





















 


6              Default Interest


 


6.1          Default
Interest


 


(a)           The Borrower must pay
interest on the Money Owing, for the period from (and including) the date on
which an Event of Default occurs until (and including) the date on which the
Event of Default is remedied to the satisfaction of the Lender.


 


(b)           Interest payable under
clause 6.1(a) accrues at the Default Rate.


 


6.2          Further
interest


 


If a liability under this agreement becomes merged in
a judgment or order or exists after any winding up of the Borrower, the
Borrower, as an independent obligation, must pay interest on the amount of that
liability from the date the liability becomes payable both before and after the
judgement, order or winding up until it is paid, at the Default Rate.


 


6.3          Accrual
of default interest


 


Interest payable under this clause 6:


 


(a)           accrues daily; and


 


(b)           is calculated on the basis
of:


 


(1)           the
actual number of days on which interest has accrued; and


 


(2)           a
365 day year; and


 


(c)           may be capitalised at
monthly intervals to the extent that it has not been paid.


 


6.4          Obligation
to pay unaffected


 


Nothing in this clause affects the Borrower’s
obligation to pay each amount which is due and payable under this agreement on
the date on which it falls due for payment.


 


7              Payments


 


7.1          Manner
of payment


 


All payments by the Obligors under the Finance Documents
must be made:


 


(a)           in immediately available
and freely transferable funds;


 


(b)           in Dollars;


 


(c)           no later than 11.00am on
the due date,


 


7





















 


to the Lender’s account as specified by the Lender to
the Borrower or in any other manner the Lender directs from time to time.


 


7.2          Amounts
payable on demand


 


If any amount payable by an Obligor under any Finance
Document is not expressed to be payable on a specified date, that amount is
payable by the Obligor on demand by the Lender.


 


7.3          No
set-off or deductions


 


All payments by an Obligor under a Finance Document
must be paid in full without any set-off or counterclaim and not subject to any
condition and free and clear of, and without any deduction or withholding for
or on account of, any Tax unless required by applicable law.


 


7.4          Additional
payments


 


If:


 


(a)           an Obligor is required to
make a deduction or withholding in respect of Tax (other than Excluded Tax)
from any payment to be made to the Lender under any Finance Document; or


 


(b)           the Lender is required to
pay any Tax (other than Excluded Tax) in respect of any payment it receives
from an Obligor under any Finance Document,


 


the Obligor:


 


(c)           indemnifies the Lender
against that Tax; and


 


(d)           must pay to the Lender an
additional amount which the Lender determines to be necessary to ensure that
the Lender receives when due a net amount (after payment of any Tax in respect
of each additional amount) that is equal to the full amount it would have
received if a deduction or withholding or payment of Tax had not been made.


 


7.5          Taxation
deduction procedures


 


If clause 7.4(a) applies:


 


(a)           the Obligor must pay the
amount deducted or withheld to the appropriate Government Agency as required by
law; and


 


(b)           the Obligor must:


 


(1)           use
reasonable endeavours to obtain a payment receipt from the Government Agency
(and any other documentation ordinarily provided by the Government Agency in
connection with the payment); and


 


8





















 


(2)           within
2 Business Days after receipt of the documents referred to in
clause 7.5(b)(1), deliver copies of them to the Lender.


 


7.6          Application
of Moneys


 


(a)           If any amount paid or
recovered in relation to the Money Owing is less than the amount then due, the
Lender will apply that amount against amounts outstanding under the Finance
Documents in the following order:


 


(1)           first,
towards any unpaid fees and reimbursement of unpaid costs, expenses, charges,
damages or indemnity payments of the Lender;


 


(2)           second,
towards payment of any unpaid interest;


 


(3)           third,
towards repayment or prepayment of the Principal Outstanding; and


 


(4)           fourth,
towards any other amounts due under the Finance Documents.


 


(b)           Any application by the
Lender under clause 7.6(a) will override any appropriation made by the
Borrower.


 


8              Representations and warranties


 


8.1          General
representations and warranties


 


Each Obligor represents and warrants to the Lender
that:


 


(a)           (status)
it is a corporation, limited by shares, registered (or taken to be registered)
and validly existing under the laws of its jurisdiction of incorporation;


 


(b)           (power)
it has full legal capacity and power:


 


(1)           to own
its assets and carry on its business as each are now being conducted; and


 


(2)           to
enter into, exercise its rights and perform its obligations under, the
Transaction Documents to which it is expressed to be a party;


 


(c)           (authorisation)
it has taken all necessary action:


 


(1)           to
authorise the execution, delivery and performance of the Transaction Documents
to which it is expressed to be a party; and


 


9





















 


(2)           to
make the Transaction Documents to which it is expressed to be a party
admissible in evidence in the courts specified in clause 19.2, (subject to, in
the case of the Finance Documents only, any necessary stamping and registration
requirements);


 


(d)           (obligations
binding) the Transaction Documents to which it is expressed to be a
party constitute its legally binding obligations, enforceable against it in
accordance with their respective terms except to the extent limited by
equitable principles and laws affecting creditors’ rights generally, (subject
to, in the case of the Finance Documents only, any necessary stamping and
registration requirements);


 


(e)           (no
contravention) its execution of, its exercise of its rights, or
performance of its obligations under, the Transaction Documents to which it is
expressed to be a party will not:


 


(1)           contravene
any applicable law to which it or its property is subject or any order of any
Government Agency binding on it or any of its property;


 


(2)           contravene
its constitutional documents or any Authorisation or require that any
Authorisation be obtained which has not been obtained;


 


(3)           contravene
any undertaking or instrument binding on it or any of its property;


 


(4)           require
it to make a payment or delivery in respect of any Financial Indebtedness
before the scheduled date for that payment or delivery; or


 


(5)           cause
any limitation on its power to incur Financial Indebtedness to be exceeded;


 


(f)            (no
litigation) no litigation, arbitration, mediation, conciliation or
administrative proceedings are taking place, pending or, to the knowledge of
any of its officers, threatened against it or any of its property which are
reasonably likely to have a Material Adverse Effect;


 


(g)           (Financial
Statements) its most recent Financial Statements:


 


(1)           give a
true and fair view of its financial condition and its state of affairs as at
the date they were prepared;


 


(2)           were
prepared in accordance with generally accepted accounting principles applying
in the place of its incorporation which have been consistently applied;


 


10





















 


(h)           (no change in
affairs) there has been no change in its state of affairs since the
end of the accounting period for its most recent Financial Statements which has
had or is likely to have a Material Adverse Effect;


 


(i)            (Reports and
analysis):


 


(1)           all
factual information supplied by it in connection with the preparation of any
Report was true, complete and accurate at the date that it was supplied;


 


(2)           so far
as it is aware, all statements of fact recorded in any Report are true and
accurate in all material respects;


 


(3)           so far as it is aware, no Report is misleading
in any material respect and nothing has occurred since the date of the report
which renders any material facts contained in the Report inaccurate or
misleading;


 


(j)            (other
information) the written information and documents which it has
furnished to the Lender in connection with the negotiation and preparation of
the Finance Documents (other than projections and forecasts) was, when given,
true and accurate in all material respects and not misleading, whether by
omission or otherwise;


 


(k)           (No failure
to disclose) it has not withheld from the Lender any information
material to the decision of the Lender to enter into the Finance Documents to
which the Lender is expressed to be a party;


 


(l)            (no defaults)
no Event of Default and, on the date of this agreement, no Default, has
occurred which is continuing;


 


(m)          (warranties
correct) its representations and warranties under any Transaction
Document are correct and not misleading when made or repeated under the
Transaction Documents;


 


(n)           (ownership of
assets)


 


(1)           it has
good title to all assets necessary to conduct its business; and


 


(2)           it is
the sole legal and beneficial owner of all of its Security Property subject to
the Permitted Security Interests;


 


(o)           (no Security
Interests)


 


(1)           its
property is not subject to any Security Interest, other than a Permitted
Security Interest;


 


(2)           no
person holds an interest in its property other than under a Permitted Security
Interest; and


 


11





















 


(3)           each
Security has the priority to which the Lender has agreed;


 


(p)           (commercial
benefit) the entering into and performance by it of its obligations
under the Transaction Documents to which it is expressed to be a party is for
its commercial benefit;


 


(q)           (environment)


 


(1)           it is
in compliance with all Environmental Laws and all Environmental Approvals
necessary in connection with the ownership and operation of its business have
been obtained and are in full force and effect;


 


(2)           to the
best of its knowledge and belief having made due and careful enquiry, there are
no circumstances which could reasonably be expected to prevent it from
complying with any Environmental Law or any Environmental Approval;


 


(3)           no
material unbudgeted investment is necessary to obtain, renew, extend, modify or
surrender any Environmental Approval or to ensure compliance with any
Environmental Law;


 


(4)           to the
best of its knowledge and belief having made due and careful enquiry, there has
been no act or omission by it, and no event or circumstance has arisen, in each
case which has resulted in (or could result in) any third party taking any
legal proceedings against or serving any notice on it or any of its officers or
employees under any Environmental Law or in the revocation, suspension,
variation or non-renewal of, or in material expenditure being required in order
to surrender, any Environmental Approval and is or would be likely to have a
Material Adverse Effect;


 


(5)           neither
it nor any of its officers or employees has received any statutory notice,
written or oral, of any complaints, demands, civil claims, enforcement
proceedings, requests for information, or of any action required by any
regulatory authority which are likely to have a Material Adverse Effect and
there are no investigations pending or, as far as it (or any officer or
employee) is aware, threatened in relation to any liability of it or any
officer or employee under Environmental Law and/or the failure of any Obligor
to obtain or comply with any Environmental Approval or comply with Environmental
Law which would be likely to have a Material Adverse Effect;


 


(6)           the
properties (including the Security Property) and any former properties owned,
occupied or otherwise used by the Borrower are not polluted or contaminated nor
have they


 


12




















 


been used for any purpose which has or is
reasonably likely to have resulted in any pollution or contamination which in
either case may be reasonably likely to give rise to liability under
Environmental Law which would have a Material Adverse Effect;


 


(7)                                  copies of all material environmental reports,
surveys, assessments and investigations in respect of the properties or former
properties owned, occupied or otherwise used by it in the possession of it have
been disclosed to the Lender;


 


(8)                                  to the best of its knowledge and belief having
made due and careful enquiry, it is nor aware of any actual changes or other
possible changes (which are referred to in national, international or other
regulatory bodies’ consultation papers or in other formal methods of announcing
possible changes) in Environmental Law which may have a Material Adverse
Effect; and


 


(9)                                  it has not given any material warranty or
indemnity or other contractual protection (be it by way of acknowledgement or
otherwise) in respect of liability under Environmental Law to any third party
to whom it has sold any real property or other property or from whom it has
bought real property or other property;


 


(r)                                    (Intellectual Property)
the Intellectual Property required for it to conduct its business as presently
conducted:


 


(1)                                  is legally and beneficially owned by it or
licensed to an Obligor (and where registered or the subject of an application
it is the registered proprietor) free from any obligation to assign to third
parties and Security Interests which are materially prejudicial to the use of
that Intellectual Property and will not be adversely affected by the
transactions contemplated by the Transaction Documents; and


 


(2)                                  has not lapsed or been cancelled and all steps
have been taken to protect and maintain that Intellectual Property, including
paying renewal fees;


 


(s)                                  (no trustee) it
is not a trustee of any trust;


 


(t)                                    (Group Structure)


 


(1)                                  all Group Members are listed in the Group
Structure Diagram; and


 


13





















 


(2)                                  the Group Structure Diagram is true and correct
in all respects and does not omit any material information or details;


 


(u)                                 (Approved Projections and
Business Plan):


 


(1)                                  all statements of fact recorded in the Approved
Projections and Business Plan were on the date provided true and accurate in
all material respects;


 


(2)                                  the opinions and views expressed in the
Approved Projections and Business Plan represent the honestly held opinions and
views of the directors of the Borrower and were arrived at after careful
consideration and are based on reasonable grounds;


 


(3)                                  the projections and forecasts contained in the
Approved Projections and Business Plan are based upon assumptions (including
assumptions as to the future performance of the Group, inflation, price
increases, interest rates and efficiency gains) which have been carefully
considered by the directors of the Borrower and were considered by them to be
fair and reasonable on the date provided;


 


(4)                                  neither the Approved Projections nor the
Business Plan, on the date provided, were misleading in any material respect or
omitted to disclose any matter where failure to disclose such matter would
result in the Business Plan or the Approved Projections (as the case may be)
(or any information or business plan contained therein) being misleading in any
material respect;


 


(5)                                  except as disclosed to the Lender, nothing has
occurred or come to the attention of the Borrower since the date as at which
the Business Plan or the Approved Projections (as the case may be) was prepared
which renders any material facts contained in the Business Plan or the Approved
Projections (as the case may be) inaccurate or misleading or which makes any of
the opinions, projections or forecasts contained in the Business Plan or the
Approved Projections (as the case may be) unfair or unreasonable or renders any
of the assumptions on which the projections are based unfair or unreasonable;


 


(v)                                 (Transaction Documents)
the Transaction Documents as provided to the Lender under this agreement
contain all the material terms of the material agreements and arrangements
between any Group Member and the other parties to the relevant Transaction
Documents;


 


(w)                               (Corporations Act)
it has considered and has received legal and financial advice in respect of the
matters, acts and things referred to in,


 


14





















 


and contemplated by, the Transaction Documents, and has satisfied itself
that the execution and performance by it of its obligations under the
Transaction Documents to which it is expressed to be a party could not breach
or directly or indirectly result in a breach of the Corporations Act (including
Chapter 2E or 2J.3 of the Corporations Act) or similar legislation in other
relevant jurisdictions;


 


(x)                                   (solvency) it:


 


(1)                                  is solvent and there are no reasonable grounds
to suspect that it is, or will be, unable to pay its debts as and when they
become due and payable; and


 


(2)                                  will continue to be able to pay all its debts
as and when they become due and payable;


 


(y)                                 (immunity) it
and its property are free of any right of immunity from set-off, proceedings or
execution in respect of its obligations under any Transaction Documents;


 


(z)                                   (No Waiver) no
Group Member has:


 


(1)                                excluded, restricted or waived or agreed to
waive any material rights against any intermediary who has provided information
or carried out work in connection with any Receivable; or


 


(2)                                received written notice of any significant
litigation or claim relating to any Receivable or its ability to fully,
effectively and promptly enforce any Receivable which would be likely to have a
Material Adverse Effect other than notice in relation to any litigation or
claim notified to the Lender;


 


(aa)                            (No Misrepresentation)
so far as it is aware, (having made all reasonable enquiries that a person in
its position, acting prudently, should make), no fraud, misrepresentation or
concealment has been perpetrated by any person or intermediary in relation to
any Receivable which would be likely to have a Material Adverse Effect; and


 


(bb)                          (No Debtor rights)
no Debtor has any right or defence (other than as notified by an Obligor to the
Lender in writing):


 


(1)                                  which is now exercisable; or


 


(2)                                  which with the giving of notice, lapse of time
or determination of materiality will become exercisable;


 


to:


 


(3)                                  cease or suspend performance of any of the
Debtor’s obligations in relation to the Receivable; or


 


15





















 


(4)                                  avoid performing or reduce any liability which
the Debtor might otherwise have in relation to the Receivable,


 


which in each case would be likely to have a
Material Adverse Effect.


 


8.2                               Repetition of representations and warranties


 


The representations and warranties given under
this agreement (except in the case of the warranties in clauses 8.1(j) and
8.1(k), which are not repeated):


 


(a)                                  survive the execution of each Finance Document;
and


 


(b)                                 are repeated by the Borrower on the date on
each Drawdown Date and on the last day of each Interest Period, with reference
to the facts and circumstances subsisting at that date.


 


8.3                               Reliance on representations and warranties


 


Each Obligor acknowledges that the Lender has
entered into each Finance Document and agreed to provide the Facility in
reliance on the representations and warranties provided under this agreement.


 


9                                         General undertakings


 


9.1                               Term of undertakings


 


Unless the Lender otherwise agrees in writing,
until:


 


(a)                                  the commitment of the Lender under the Facility
is cancelled;


 


(b)                                 the Money Owing is unconditionally repaid in
full; and


 


(c)                                  each Security is discharged,


 


each Obligor must, at its own cost, comply with
its obligations under this agreement.


 


9.2                               Authorisations and Status Undertakings


 


(a)                                  (Consents) Each
Group Member will obtain and maintain in full force and effect all consents and
filings required under any applicable law or regulation:


 


(1)                                  to enable it to perform its obligations under
each Transaction Document to which it is expressed to be a party; and


 


(2)                                  for the validity, enforceability or
admissibility in evidence of each such Transaction Document.


 


(b)                                 (Maintenance of Status and
Authorisation) Each Group Member will:


 


16





















 


(1)                                  do all things necessary to maintain its
corporate existence;


 


(2)                                  obtain and maintain in full force and effect
all consents, Authorisations and filings required for the conduct of its
business; and


 


(3)                                  comply with all laws and regulations applicable
to it.


 


(c)                                  (Amalgamations)
No Group Member will amalgamate, merge or consolidate with or into any other
person or be the subject of any reconstruction other than any solvent
reorganisation approved by the Lender.


 


(d)                                 (Change of Business)
No Group Member will change the nature of its business or carry on any other
business, in either case in any way which is substantially different to its
Core Business.


 


(e)                                  (Constitutional Documents)
No Group Member will agree to any amendment of its constitutional documents
which would adversely affect the interests of the Lender under the Finance
Documents.


 


9.3                               Disposals and Security Undertakings


 


(a)                                  (Disposals) No
Group Member will (whether by a single transaction or a series of related or
unrelated transactions and whether at the same time or over a period of time)
sell, transfer, license, lease out or otherwise dispose of any of its Security
Property, except


 


(1)                                  an asset which is subject to a floating charge
under a Security and in, and only in, the ordinary course of ordinary business;


 


(2)                                  an asset (other than real property or an
interest in real property or any other asset the subject of a fixed charge
under a Security) which is replaced by one or more assets having similar
function and of comparable or superior type, value and quality


 


(3)                                  any assets of which the total value does not
exceed $100,000 in any Financial year (excluding disposals otherwise permitted
under this clause); or


 


(4)                                  a sale of the motor vehicle fleet owned by the
Group, provided that:


 


(A)                              the motor vehicle fleet is
leased back to a Group Member simultaneously with, or immediately after, the
sale of the motor vehicle fleet and the motor vehicle fleet is available for
use by the Group in the operation of their business;


 


17





















 


(B)                                the proceeds of the sale
are in excess of 80% of the net book value of the assets sold;


 


(C)                                the terms and conditions
of the leases to be entered into by a Group Member in respect of the motor
vehicle fleet are acceptable to the Lender; and


 


(D)                               the proceeds of the sale
are used to prepay the Principal Outstanding under Tranche A in accordance with
clause 5.5.


 


(b)                                 (Negative Pledge)
No Group Member will create or agree to create or permit to subsist any
Security Interest over any part of its assets, other than any Permitted
Security Interest.


 


(c)                                  (Security Interest)
No Group Member will take any action which would cause a Security Interest to:


 


(1)                                  cease to have priority which it purports to
have under the relevant Transaction Documents; or


 


(2)                                  be ineffective to secure the payment of the
money or compliance with the obligations which it purports to secure.


 


9.4                               Acquisition and Investment Undertakings


 


(a)                                  (Subsidiaries and
acquisitions) No Group Member will:


 


(1)                                  acquire shares in any company other than
another Obligor;


 


(2)                                  create any Subsidiary unless that Subsidiary
becomes an Obligor in accordance with this agreement; or


 


(3)                                  acquire any assets other than in the ordinary
course of ordinary business and free from any Security Interest other than the
Permitted Security Interests;


 


(b)                                 (Joint Ventures)
No Group Member will enter into any joint venture, partnership or similar
arrangement with any person.


 


9.5                               Financing Arrangement Undertakings


 


(a)                                  (Borrowings) No
Group Member will incur or permit to be outstanding any Financial Indebtedness,
other than Permitted Financial Indebtedness.


 


(b)                                 (Guarantees) No
Group Member will grant or make available any Guarantee, other than any
Guarantee contained in any Finance Document.


 


18





















 


(c)                                  (financial accommodation)
No Group Member will make any loans, grant any credit or make available any
other financial accommodation to any person other than:


 


(1)                                  to Obligors; and


 


(2)                                  in the ordinary course of ordinary business.


 


9.6                               Conduct of Business Undertakings


 


(a)                                  (Insurance)


 


(1)                                  Each Group Member will effect and maintain
insurances at its own expense in relation to all its assets and risks of an
insurable nature with insurers approved by the Lender which:


 


(A)                              provide cover against all
risks which are normally insured against by other companies owning or
possessing similar assets or carrying on similar businesses;


 


(B)                                are in amounts which would
in the circumstances be prudent for those companies;


 


(C)                                have the interest of the
Lender as mortgagee noted on the policies; and


 


and it will use all reasonable endeavours to prevent
any acts, omissions or events of default occurring which render or might render
any policies of insurance taken out by it void or voidable.


 


(2)                                  The Borrower will:


 


(A)                              supply to the Lender on
request copies of each policy of insurance required to be maintained in
accordance with clause 9.6(a)(1) (“policies”), together with the current
premium receipts relating to the policies;


 


(B)                                promptly notify the Lender
of any material change to the insurance cover of each Group Member; and


 


(C)                                promptly notify the Lender
of any material claim under any policy.


 


(b)                                 (Intellectual Property)
Each Group Member will:


 


(1)                                  ensure that it legally and beneficially owns or
has all necessary consents to use and, where applicable, is recorded as the
registered proprietor of all the Intellectual Property Rights that it requires
in order to conduct its business;


 


19





















 


(2)                                  observe and comply with all obligations and
laws applicable to it in relation to the Intellectual Property where failure to
do so would be likely to result in a Material Adverse Effect;


 


(3)                                  maintain and protect the Intellectual Property,
including maintaining and, where reasonable, pursuing registration where
failure to do so would be likely to result in a Material Adverse Effect; and


 


(4)                                  notify the Lender as soon as it becomes aware
of any infringement, alleged infringement, claims or proceedings relating to
the Intellectual Property.


 


(c)                                  (Taxes) Each
Group Member will pay when due (or within any applicable time limit), all Taxes
imposed upon it or any of its assets, income or profits on any transactions
undertaken or entered into by it except in relation to any bona fide tax
dispute for which proper provision has been made in its accounts.


 


(d)                                 (Arm’s Length Transactions)
No Group Member will enter into any agreement or arrangement other than on an
arm’s length basis and in the normal course of trading.


 


9.7                               Environmental Undertakings


 


Each Group Member will:


 


(a)                                  comply with all Environmental Approvals and
Environmental Laws applicable to it;


 


(b)                                 obtain and maintain all Environmental Approvals
applicable to it;


 


(c)                                  promptly upon receipt of the same notify the
Lender of any claim, notice or other communication served on it in relation to
any Environmental Law or Environmental Approval applicable to it or if it
becomes aware of any actual or prospective material variation to any
Environmental Law or Environmental Approval;


 


(d)                                 promptly notify the Lender of any material
investment required to be made by any Obligor to maintain, acquire, renew,
modify, amend, surrender or revoke any Environmental Approval or if it
otherwise becomes aware of such a material requirement; and


 


(e)                                  not provide any material warranty, indemnity or
other contractual protection in relation to the sale or disposal of any
interest in real property which protection relates to potential or actual
liability under Environmental Law.


 


20





















 


9.8                               Transaction Document


 


No Group Member will agree to any amendment of
any term of, or waiver under, any Transaction Document which could adversely
affect the interests of the Lender under the Finance Documents.


 


9.9                               Share Capital, Dividend


 


(a)                                  (Share Issues)
No Group Member other than the Borrower will allot or issue any shares or
relevant securities (as defined in Section 92 of the Corporations Act) other
than in favour of an Obligor.


 


(b)                                 (Redemption and Acquisition
of Own Shares) No Group Member will directly or indirectly redeem,
purchase, retire or otherwise acquire any shares or warrants issued by it or
otherwise reduce its capital, other than in favour of an Obligor.


 


(c)                                  (Restriction on Payment of
Dividends)


 


(1)                                  No Group Member will declare or pay, directly
or indirectly, any dividend or make any other distribution or pay any interest
or other amounts, whether in cash or otherwise, on or in respect of its share
capital or any class of its share capital (Distribution)
unless:


 


(A)                              the Distribution is made
from Excess Cashflow;


 


(B)                                the ratio of EBITDA to
Debt Service for the Testing Date immediately preceding the date of the
Distribution is greater than 1.5:1; and


 


(C)                                the Distribution is made
after 30 June 2008.


 


(2)                                  In this clause, ‘Debt Service’, ‘EBITDA’ and
‘Testing Date’ (and its constituent definitions) have the same meaning as in
clause 9.14 and EBITDA is to be calculated in accordance with clause 9.15.


 


(d)                                 (Shareholder Payments)


 


(1)                                  No Group Member will make any repayment of
principal of, or payment of interest on (other than scheduled interest payable
in accordance with the terms of the Existing Shareholder Loans), or any other
payment with respect to, any shareholder loans (including the Existing
Shareholder Loans) (Shareholder Payment)
unless:


 


(A)                              the Shareholder Payment is
made from Excess Cashflow;


 


21





















 


(B)                                the ratio of EBITDA to
Debt Service for the Testing Date immediately preceding the date of the
Shareholder Payment is greater than 1.5:1; and


 


(C)                                the Shareholder Payment is
made after 30 June 2008.


 


(2)                                  In this clause, ‘Debt Service’, ‘EBITDA’ and
‘Testing Date’ (and its constituent definitions) have the same meaning as in
clause 9.14 and EBITDA is to be calculated in accordance with clause 9.15.


 


(e)                                  (Payments to Members)
No Group Member will make any payment to its members by way of management,
royalty or similar fee unless that payment is in relation to services actually
provided on arm’s length commercial terms or is otherwise permitted under the
Finance Documents.


 


(f)                                    (Cash Movement)
No Group Member will be a party to any contractual or similar restriction
(except as set out in any Finance Document) by which any Obligor is prohibited
from making loans, transferring assets or making any payment of dividends,
distributions of income or other amounts.


 


9.10                        Information and Accounting Undertakings


 


(a)                                  (Defaults) Each
Group Member will notify the Lender promptly upon becoming aware of the
occurrence of a Default and on request by the Lender following such
notification supply the Lender with a certificate signed by any two of its
directors certifying that no Default has occurred and is continuing or, if that
is not the case, setting out details of any Default which is outstanding and
the action taken or proposed to be taken to remedy it.


 


(b)                                 (Books of Account and
Auditors) Each Group Member will, and will procure that each of its
Subsidiaries will:


 


(1)                                  keep proper books of account relating to its
business; and


 


(2)                                  have as its auditors a firm which is approved
by the Lender (such approval not to be unreasonably withheld or delayed).


 


(c)                                  (Financial Statements,
Approved Projections and Business Plan) The Borrower will deliver to
the Lender:


 


(1)                                  as soon as available, and in any event within
90 days after the end of each Financial Year, copies of the audited Financial
Statements (consolidated and unconsolidated) of the Group and each Group Member
as at the end of and for that Financial Year; and


 


22





















 


(2)                                  as soon as available and in any event within 21
days after the end of each calendar month, copies of the unaudited management
accounts (consolidated and unconsolidated) of the Group and each Group Member
as at the end of and for that calendar month (which must include):


 


(A)                              a profit and loss account
for the month;


 


(B)                                a cashflow statement for
the month;


 


(C)                                a balance sheet as at the
end of the relevant month;


 


(D)                               business performance KPIs
and other financial performance related information requested by the Lender;


 


(E)                                 details on capital
expenditure progress undertaken during the month and planned for the following
three months; and


 


(F)                                 a report in the form of
Schedule 6 listing the amount of the Borrowing Base, Eligible Inventory
and Eligible Receivables for the month and containing reasonably detailed
calculations acceptable to the Lender.


 


(3)                                  by no later than 15 Business Days before the
start of each Financial Year, an update of the Approved Projections and
Business Plan.


 


(d)                                 (Compliance Certificates)


 


(1)                                  Each of the Annual Accounts and Monthly
Accounts (in respect of the end of an Accounting Quarter) must be accompanied
by a certificate substantially in the form of Schedule 7 signed by two
directors of the Borrower, which will:


 


(A)                              certify whether or not, as
at the date of the relevant accounts, each Obligor was in compliance with the
financial covenants contained in clause 9.13 (Financial Covenants) (in
respect of the financial covenant in clause 9.13(c) and contain reasonably detailed
calculations acceptable to the Lender; and


 


(B)                                confirm that, as at the
date of that certificate, no Default is outstanding or, if that is not the
case, set out details of any Default which is outstanding and the action taken
or proposed to be taken to remedy it.


 


23





















 


(2)                                  The Annual Accounts must be accompanied by a
certificate from the Auditors which will:


 


(A)                              be in a form acceptable to
the Lender; and


 


(B)                                demonstrate whether or
not, as at the date of the relevant Annual Accounts, the Borrower was in
compliance with the financial covenants contained in clause 9.13
(Financial Covenants).


 


(e)                                  (Generally Accepted
Accounting Principles) All accounts of any Group Member delivered to
the Lender under this agreement will be prepared in accordance with the
Generally Accepted Accounting Principles and, in the case of Annual Accounts,
in compliance with the Corporations Act (or similar legislation in other
relevant jurisdictions).


 


(f)                                    (Accounting Reference Date)
The Borrower will, and will procure that each of its Subsidiaries will, have a
financial year end which is the same as the Financial Year end.


 


(g)                                 (Investigations)


 


(1)                                  If the Lender has reasonable grounds (after
notifying the Borrower and allowing the Borrower 2 weeks to respond to, or
rectify, the grounds raised in that notice) for believing that either:


 


(A)                              any accounts or
calculations provided under this agreement are inaccurate or incomplete in any
material respect; or


 


(B)                                any Obligor is, or may in
future be, in breach of any of its obligations under clause 9.13
(Financial Covenants),


 


then the Borrower will at its own expense, if so
required by the Lender, instruct the Auditors (or other firm of accountants
selected by the Lender) to discuss the financial position of the Group with the
Lender and to disclose to the Lender (and provide copies of) such information
as the Lender may reasonably request regarding the financial condition and
business of the Group.


 


(2)                                  If, having taken the steps in clause
9.10(g)(1), the Lender may instruct the Auditors (or other firm of accountants
selected by the Lender) to carry out an investigation at the Borrower’s expense
into the affairs, the financial performance and/or the accounting and other
reporting procedures and standards of the Group, and the Borrower will procure
that full co-operation is given to the Auditors or other firm of accountants so
selected.


 


24





















 


(h)                                 (Other Information)
The Borrower will promptly deliver to the Lender:


 


(1)                                  details of any litigation, arbitration,
administrative or regulatory proceedings relating to it or any of its
Subsidiaries;


 


(2)                                  details of any labour or industrial relations
dispute affecting it or any of its Subsidiaries;


 


(3)                                  at the same time as it is sent to its
creditors, any other document or information sent to any class of its creditors
generally (excluding for this purpose creditors which are Group Members);


 


(4)                                  any other information relating to:


 


(A)                              the financial condition or
operation of any Group Member;


 


(B)                                any Receivables or any
transaction contemplated by the Transaction Documents,


 


which the Lender may from time to time
reasonably request;


 


(5)                                  details of any breach of the provisions of any
Transaction Document of which it is aware;


 


(6)                                  copies of any notice given or received under
the Transaction Documents; and


 


(7)                                  an update of the Group Structure Diagram in the
event the current Group Structure Diagram is not true and correct in all
respects or it omits any material information or details.


 


9.11                        Corporations Act


 


No Group Member will:


 


(a)                                  enter into any arrangement or agreement;


 


(b)                                 apply any of the Advances for a purpose; or


 


(c)                                  do or omit to do anything,


 


which could breach or directly or indirectly
result in a breach of the Corporations Act (including Chapter 2E or 2J.3 of the
Corporations Act) or similar legislation in other relevant jurisdictions.


 


25

















 


9.12                        Lessor’s Consent


 


No Group Member will enter into any new lease
of premises without using its best endeavours to obtain from the lessor a right
of entry agreement with the Lender (in a form approved by the Lender) and
providing the Lender as soon as practicable and in any event within 30 days of
the Group Member signing the lease, with a certified copy of the lease and an
original right of entry document.


 


9.13                        Financial Covenants


 


Each Obligor undertakes that it will procure
that at all times:


 


(a)                                  (Debt Service Cover)
the ratio of EBITDA to Debt Service:


 


(1)                                  as at each Testing Date occurring on 31
December, will not be less than 1.00:1; and


 


(2)                                  for each other Testing Date, will not be less
than 1.20:1;


 


(b)                                 (Interest Cover)
the ratio of EBITDA to Interest Payable for each Testing Period ending on a
Testing Date will not be less than the ratio specified in the following table
during each applicable period:


 


	
  (1)

  	
   

  	
  (2)

  	
   

  
	
  Period

  	
   

  	
  Interest Cover

  Ratio

  	
   

  
	
  From 1 January 2008 to 31
  December 2008

  	
   

  	
  2.50:1

  	
   

  
	
  From 1 January 2009 to 31
  December 2009

  	
   

  	
  3.00:1

  	
   

  
	
  From 1 January 2010 to the
  Termination Date

  	
   

  	
  3.25:1

  	
   

  



 


(c)                                  (Borrowing Base)
at all times the aggregate amount of Money Owing will not be greater than the
Borrowing Base.


 


9.14                        Financial Definitions


 


For the purposes of clause 9.13 (Financial
Covenants):


 


Debt Service means the aggregate of:


 


(a)                                  Interest Payable for the relevant Testing
Period; and


 


(b)                                 all scheduled repayments of principal under the
terms of any Financial Indebtedness of any Group Member falling due during that
Testing Period, including all capital payments falling due in relation to any
finance leases.


 


26

















 


EBIT means the consolidated profit of the Group for
the relevant Testing Period:


 


(a)                                  before any deduction of corporation tax or
other Taxes on income or gains;


 


(b)                                 before any deduction for Interest Payable;


 


(c)                                  excluding extraordinary items which are
unrealised (for the avoidance of doubt, EBIT will include any extraordinary
items which realised a cash gain);


 


(d)                                 after deducting (to the extent otherwise
included) the amount of profit (or adding back the amount of loss) of any
Obligor (other than the Borrower) which is attributable to any third party
(other than a Obligor) which is a shareholder in that Obligor; and


 


(e)                                  after adding back or deducting, as the case may
be, the amount of any loss or gain against book value arising on a disposal of
any asset (other than disposals in the ordinary course of business) during that
Testing Period, to the extent included in arriving at EBIT for that Testing
Period.


 


EBITDA means the consolidated profit of the Group for
the relevant Testing Period:


 


(a)                                  before any deduction of corporation tax or
other Taxes on income or gains;


 


(b)                                 before any deduction for Interest Payable;


 


(c)                                  excluding extraordinary items which are
unrealised (for the avoidance of doubt, EBIT will include any extraordinary
items which realised a cash gain);


 


(d)                                 after deducting (to the extent otherwise
included) the amount of profit (or adding back the amount of loss) of any
Obligor (other than the Borrower) which is attributable to any third party
(other than a Obligor) which is a shareholder in that Obligor;


 


(e)                                  after adding back or deducting, as the case may
be, the amount of any loss or gain against book value arising on a disposal of
any asset (other than disposals in the ordinary course of business) during that
Testing Period, to the extent included in arriving at EBITDA for that Testing
Period;


 


(f)                                    before deducting amortisation of any goodwill
or any intangible assets; and


 


(g)                                 before deducting any depreciation on fixed
assets;


 


27

















 


Interest means interest and amounts in the nature of
interest paid or payable in relation to any Financial Indebtedness including:


 


(a)                                  the interest element of finance leases;


 


(b)                                 discount and acceptance fees payable (or
deducted) in relation to any Financial Indebtedness;


 


(c)                                  fees payable in connection with the issue or
maintenance of any bond, letter of credit, guarantee or other assurance against
financial loss which constitutes Financial Indebtedness and is issued by a
third party on behalf of a Obligor;


 


(d)                                 repayment and prepayment premiums payable or
incurred in repaying or prepaying any Financial Indebtedness; and


 


(e)                                  commitment, utilisation and non-utilisation
fees payable or incurred in relation to Financial Indebtedness;


 


Interest Payable means the total of (without double counting):


 


(a)                                  Interest accrued (whether or not paid or
compounded and accordingly added to principal) during the relevant Testing
Period; and


 


(b)                                 the amount of the discount element of any
Financial Indebtedness amortised during that Testing Period,


 


as an obligation of any
Obligor during that period less any Interest received during that Testing
Period;


 


Testing Date means the last day of each Accounting Quarter,
with the first Testing Date being 31 March 2008;


 


Testing Period means, subject to clause 9.15(a), each period
which corresponds to the annual accounting reference period of the Borrower or
four consecutive Accounting Quarters and ending on a Testing Date;


 


Total Debt means, at any time, the aggregate outstanding
principal or capital amount of all Financial Indebtedness of the Group
calculated on a consolidated basis, except that:


 


(a)                                  in the case of any finance lease only the
capitalised value of that finance lease (as determined in accordance with the
Generally Accepted Accounting Principles) will be included; and


 


(b)                                 in the case of any Guarantee, the amount of
that guarantee will not be included, to the extent it relates to indebtedness
of another Obligor already included in the calculation of Total Debt.


 


28
















 


9.15                        Calculation


 


(a)                                  For the purpose of determining compliance with
the covenant in clauses 9.13(a) (Debt Service Cover) and 9.13(b) (Interest
Cover), the Testing Period corresponding to the:


 


(1)                                  first Testing Date, will be the three month
period from 1 January 2008 to 31 March 2008;


 


(2)                                  second Testing Date, will be the six month
period from 1 January 2008 to 30 June 2008; and


 


(3)                                  third Testing Date, will be the nine month
period from 1 January 2008 to 30 September 2008.


 


(b)                                 The covenants contained in clause 9.13
(Financial Covenants) will be tested by reference to the Monthly Accounts for
the relevant Testing Period, unless the Annual Accounts for all or any part of
the relevant period are available on the relevant date on which any such covenant
is tested, in which case those Annual Accounts will be used instead.


 


(c)                                  If the Annual Accounts are not available when
any covenant referred to in clause 9.13 is tested, but when those Annual
Accounts become available, they show that the figures in any relevant Monthly
Accounts utilised for any such calculation cannot have been substantially
accurate, the Lender may require such adjustments to the calculations which it,
in its sole discretion (acting reasonably), considers appropriate to rectify
that inaccuracy and compliance with the covenants in clause 9.13
(Financial Covenants) will be determined by reference to those adjusted figures
provided always that any adjustment which indicates compliance with any
covenant which had been breached when tested by reference to the relevant
inaccurate figures will have the effect of nullifying, waiving or otherwise
curing that breach.


 


(d)                                 The components of each definition used in
clause 9.13 (Financial Covenants) will be calculated in accordance with
the Generally Accepted Accounting Principles, as varied by this agreement.


 


10                                  Changes to Obligors and Security


 


10.1                        Additional Guarantors


 


(a)                                  Each Obligor will procure that any Group Member
(which is not a Guarantor) required by the Lender to be a Guarantor, will
become a Guarantor by executing an Accession Document when required by the
Lender.


 


(b)                                 When an Accession Document is entered into
under clause 10.1(a), the Borrower will deliver to the Lender:


 


29





















 


(1)           the original Accession Document executed by the relevant new Obligor,
the Borrower and the Lender; and


 


(2)           an officer’s certificate in the form of Schedule 3 and a share
mortgage in respect of its Subsidiaries, each in relation to the acceding
Guarantor; and


 


each satisfactory to the Lender.


 


10.2                        Future Security


 


(a)                                  Each Obligor will procure that any Group Member
which:


 


(1)           has not entered into a Security over all or substantially all of its
assets; or


 


(2)           owns an asset which (in the opinion of the Lender, acting reasonably) is
material and which is not subject to a first priority security interest under a
Security,


 


(in either case the “Relevant
Assets”) will (unless prohibited by law) after being required to do
so by the Lender execute a Security (in form and substance satisfactory to the
Lender) over the Relevant Assets as security for all indebtedness under the
Finance Documents.


 


(b)                                 When a Security is entered into
under 10.2(a), the Borrower will deliver to the Lender:


 


(1)                                  the original Security executed by the relevant
Group Member and the Lender;


 


(2)                                  an officer’s certificate in the form of
Schedule 3 and a share mortgage in respect of its Subsidiaries, each in
each relation to the relevant Group Member; and


 


  each satisfactory to the Lender.


 


11                                  Default


 


11.1                        Events of Default


 


Each of the events set out in this
clause 11.1 constitute an Event of Default, whether or not it is within
the control of the Obligors:


 


(a)                                  (non-payment) an
Obligor or fails to pay on the due date any amount which is due and payable by
it under any Finance Document (unless such failure to pay was due to a failure
of the banking or financial system used for the transfer of funds and such
payment is made within two days after the amount becomes due and payable);


 


30





















 


(b)                                 (financial undertakings)
an Obligor breaches clause 9.13;


 


(c)                                  (non-remediable failure)
an Obligor fails to perform any undertaking or obligation of it under any
Transaction Document (other than those specified in clause 11.1(a) and (b)) and
that failure is not in the opinion of the Lender remediable;


 


(d)                                 (remediable failure)
the failure described in clause 11.1(c) is in the opinion of the Lender
remediable, and an Obligor does not remedy the failure within 10 Business Days
of the earlier of:


 


(1)                                  the Lender notifying the Obligors of that
default; or


 


(2)                                  the Obligors becoming aware of the relevant
matter;


 


(e)                                  (misrepresentation)
any representation, warranty or statement of the Obligors made or repeated in
connection with any Transaction Document is incorrect or misleading (whether by
omission or otherwise) when made or repeated, unless:


 


(1)           the circumstances leading to the relevant representation being incorrect
or misleading are capable of remedy; and


 


(2)           such circumstances are remedied within 10 Business Days of the earlier
of the Lender notifying the Obligors or the Obligors becoming aware of the
misrepresentation;


 


(f)                                    (Insolvency Event)
an Insolvency Event occurs in respect of an Obligor;


 


(g)                                 (loss of priority)
a Security Interest created by or purportedly created by a Security does not
have or ceases to have the priority which it purports to have under the
relevant Finance Document or becomes ineffective to secure the payment of the
money or compliance with the obligations which it purports to secure, otherwise
than by an act of the Lender;


 


(h)                                 (ceasing business)
an Obligor ceases, or threatens to cease, to carry on all or a material part of
its business;


 


(i)            (maintenance of capital) an Obligor passes a resolution:


 


(1)                                  for the reduction of its share capital;


 


(2)                                  to limit its ability to make calls on its
uncalled share capital; or


 


(3)                                  approving the purchase by it of any shares in
itself other than redeemable preference shares,


 


in each case without the prior
written approval of the Lender;


 


31

















 


(j)                                     (provisions void):


 


(1)           any provision of a Transaction Document is or becomes void, voidable,
illegal or unenforceable;


 


(2)           any person becomes entitled to terminate, rescind or avoid any provision
of any Transaction Document;


 


(3)           the execution, delivery or performance of a Transaction Document
breaches or results in a contravention of any applicable law; or


 


(4)           any Security does not have or loses the priority it is intended by the
parties to have or any other event or thing occurs which could materially and
adversely affect the value or the saleability of any Security;


 


(k)                                  (cross-default)
any Financial Indebtedness of an Obligor (other than Financial Indebtedness
owing to another Obligor, a shareholder of an Obligor or Channell Pty Limited
ABN 29 002 735 622) exceeding $250,000 (or its equivalent in other currencies):


 


(1)           is not paid when due or within any originally applicable grace period;
or


 


(2)           becomes due and payable (or capable of being declared due and payable)
before the scheduled date for repayment as a result of an event of default or
an acceleration event;


 


(l)                                     (compulsory acquisition):


 


(1)           all or a material part of an Obligor’s property is compulsorily acquired
by any Government Agency; or


 


(2)           an Obligor sells or divests itself of all or a material part of its
property pursuant to a binding order from a Government Agency,


 


and, in either case, the Obligor does not receive
market value compensation for the acquisition, sale or disposal;


 


(m)                               (special investigations)
any matter relating to an Obligor becomes subject to investigation or direction
by a Governmental Agency under any law (other than any investigation or
direction into companies or an industry generally) which, if adversely decided,
will have or is reasonably likely to have a Material Adverse Effect; and


 


(n)                                 (Material Adverse Effect)
any event occurs or exists which, in the reasonable opinion of the Lender, has
or is likely to have a Material Adverse Effect.


 


32





















 


11.2                        Consequences of Event of Default


 


(a)                                  If an Event of Default occurs, the Lender may
by notice to the Borrower do any or all of the following:


 


(1)                                  cancel its commitment to provide the Facility;


 


(2)                                  declare that the Money Owing is immediately due
and payable; or


 


(3)                                  enforce and exercise any of its rights under
any Security.


 


(b)                                 The Borrower must immediately repay the Money
Owing on receipt of a notice under clause 11.2(a)(2).


 


11.3                        Continue to perform


 


(a)                                  If the Lender makes a declaration under
clause 11.2, each Obligor must continue to perform its obligations under
the Transaction Documents as if the declaration had not been made, subject to
any directions given by the Lender under any Finance Document.


 


(b)                                 Clause 11.3(a) does not affect each
Obligor’s obligations under clause 11.2.


 


11.4                        Liability


 


The Lender is not liable for any loss caused by
exercising, enforcing, delaying in exercising or enforcing, attempting to
exercise or enforce or not exercising or enforcing, any of its rights, powers
or remedies in connection with the Transaction Documents.


 


12                                  Preserving the Lender’s Rights, Powers and
Remedies


 


12.1                        Preservation


 


(a)                                  The fact that the Lender does not exercise, or
delays the exercise of, any right, power or remedy does not affect any of its
other rights, powers or remedies.


 


(b)                                 The fact that the Lender delays the exercise of
any right, power or remedy does not constitute a waiver of that right, power or
remedy.


 


(c)                                  The fact that the Lender exercises a right,
power or remedy does not prevent the Lender from exercising that right, power
or remedy again.


 


(d)                                 This agreement does not operate to extinguish
or prejudice any right, power or remedy of the Lender under a Transaction Document
or a negotiable instrument.


 


33





















 


12.2                        Moratorium legislation


 


A moratorium does not apply to a Transaction
Document or the recovery of the Money Owing except if:


 


(a)                                  the Lender agrees in writing that it does; or


 


(b)                                 it cannot be excluded by law.


 


12.3                        Reinstating or replacing rights


 


If any payment made to the Lender in reduction
of the Money Owing is repaid or conceded to be void, voidable or repayable for
any reason, then, despite any release, settlement or discharge in connection
with the Money Owing:


 


(a)                                  that payment does not discharge the relevant
liability; and


 


(b)                                 the Lender may recover the amount of that
payment from each Obligor; and


 


(c)                                  each Obligor must:


 


(1)           immediately do all acts and things the Lender requires to replace or
reinstate any Transaction Document and any rights the Lender has under them
which has been released in connection with that payment; and


 


(2)           indemnify the Lender against and pay on demand all costs and expenses in
connection with replacing or reinstating any Transaction Document and any
rights the Lender has under them.


 


12.4                        Effect of release


 


A full or partial release of this agreement by
the Lender does not release any Obligor from personal liability under the Finance
Documents until the Lender receives the Money Owing, regardless of any:


 


(a)                                  receipt given, pay out figure quoted or other
form of account stated; or


 


(b)                                 error or miscalculation by the Lender.


 


13                                  Guarantee and Indemnity


 


13.1                        Guarantee


 


The Guarantors jointly and severally and
unconditionally and irrevocably guarantee to the Lender the payment of the
Money Owing.


 


34

















 


13.2                        Payment


 


(a)                                  If the Money Owing is not paid when due, each
Guarantor must immediately on demand from the Lender pay to the Lender the
Money Owing in the same manner and currency as the Money Owing is required to
be paid.


 


(b)                                 A demand under clause 13.2(a) may be made
at any time and from time to time.


 


13.3                        Securities for other money


 


The Lender may apply any amounts received by it
or recovered under any other document or agreement, which is a security for any
of the Money Owing and any other money in the manner it determines in its
absolute discretion.


 


13.4                        Amount of Money Owing


 


(a)                                  This clause 13 applies to any amount which
forms part of the Money Owing from time to time.


 


(b)                                 The obligations of each Guarantor under this
clause 13 extend to any increase in the Money Owing as a result of:


 


(1)           any amendment, supplement, renewal or replacement of any Transaction
Document to which a Obligor and the Lender is a party; or


 


(2)           the occurrence of any other thing.


 


(c)                                  Clause 13.4(b):


 


(1)           applies regardless of whether any Guarantor is aware of or consented to
or is given notice of any amendment, supplement, renewal or replacement of any
agreement to which an Obligor and the Lender is a party or the occurrence of
any other thing; and


 


(2)           does not limit the obligations of any Guarantor under this
clause 13.


 


13.5                        Proof by Lender


 


In the event of the liquidation of an Obligor,
each Guarantor authorises the Lender to prove for all money which any Guarantor
has paid or is or may be obliged to pay under any Transaction Document, any
other document or agreement or otherwise in respect of the Money Owing.


 


13.6                        Avoidance of payments


 


(a)                                  If any payment, conveyance, transfer or other
transaction relating to or affecting the Money Owing is:


 


35





















 


(1)           void, voidable or unenforceable in whole or in part; or


 


(2)           claimed to be void, voidable or unenforceable and that claim is upheld,
conceded or compromised in whole or in part,


 


the liability of each Guarantor under this
clause 13 and any power is the same as if:


 


(3)           that payment, conveyance, transfer or transaction (or the void, voidable
or unenforceable part of it); and


 


(4)           any release, settlement or discharge made in reliance on any thing
referred to in clause 13.6(a)(3),


 


had not been made and each Guarantor must immediately
take all action and sign all documents necessary or required by the Lender to
restore to the Lender the benefit of this clause 13 and any Security
Interest held by the Lender immediately before the payment, conveyance,
transfer or transaction.


 


(b)                                 Clause 13.6(a) applies whether or not the
Lender knew, or ought to have known, of anything referred to in
clause 13.6(a).


 


13.7                        Indemnity for avoidance of Money Owing


 


(a)                                  If any of the Money Owing (or money which would
have been Money Owing if it had not been irrecoverable) are irrecoverable by
the Lender from:


 


(1)           any Obligor; or


 


(2)           a Guarantor on the footing of a guarantee,


 


the Guarantors jointly and severally, unconditionally
and irrevocably, and as a separate and principal obligation:


 


(3)           indemnify the Lender against any loss suffered, paid or incurred by the
Lender in relation to the non payment of that money; and


 


(4)           must pay the Lender an amount equal to that money.


 


(b)                                 Clause 13.7(a) applies to the Money Owing
(or money which would have been Money Owing if it had not been irrecoverable)
which are or may be irrecoverable irrespective of whether:


 


(1)           they are or may be irrecoverable because of any event described in
clause 13.2;


 


(2)           they are or may be irrecoverable because of any other fact or
circumstance;


 


36





















 


(3)                                  the transactions or any of them relating to
that money are void or illegal or avoided or otherwise unenforceable; and


 


(4)                                  any matters relating to the Money Owing is or
should have been within the knowledge of the Lender.


 


13.8                        No obligation to marshal


 


The Lender is not required to marshal or to
enforce or apply under or appropriate, recover or exercise:


 


(a)                                  any Security Interest, Guarantee or other
document or agreement held, at any time, by or on behalf of that or the Lender;
or


 


(b)                                 any money or asset which the Lender, at any
time, holds or is entitled to receive.


 


13.9                        Non-exercise of Guarantors’ rights


 


A Guarantor must not exercise any rights it may
have inconsistent with this clause 13.


 


13.10                 Principal and independent obligation


 


(a)                                  This clause 13 is:


 


(1)           a principal obligation and is not to be treated as ancillary or
collateral to any other right or obligation; and


 


(2)           independent of and not in substitution for or affected by any other
Security Interest which the Lender may hold in respect of the Money Owing or
any obligations of any Obligor or any other person.


 


(b)                                 This clause 13 is enforceable against a
Guarantor:


 


(1)           without first having recourse to any Security Interest;


 


(2)           whether or not the Lender has made demand on any Obligor (other than any
demand specifically required to be given, or notice required to be issued, to a
Guarantor under clause 13.2 or any other provision of a Transaction
Document);


 


(3)           whether or not the Lender has given notice to any Obligor or any other
person in respect of any thing; or


 


(4)           whether or not the Lender has taken any other steps against any Obligor
or any other person;


 


(5)           whether or not any Money Owing is then due and payable; and


 


37





















 


(6)                                  despite the occurrence of any event described
in clause 13.12.


 


13.11                 Suspense account


 


(a)                                  The Lender may apply to the credit of a
suspense account any:


 


(1)           amounts received under this clause 13;


 


(2)           dividends, distributions or other amounts received in respect of the
Money Owing in any liquidation; and


 


(3)           other amounts received from a Guarantor, an Obligor or any other person
in respect of the Money Owing.


 


(b)                                 The Lender may retain the amounts in the
suspense account for as long as it determines and is not obliged to apply them
in or towards satisfaction of the Money Owing.


 


13.12                 Unconditional nature of obligations


 


(a)                                  This clause 13 and the obligations of each
Guarantor under the Transaction Documents are absolute, binding and unconditional
in all circumstances, and are not released or discharged or otherwise affected
by anything which but for this provision might have that effect, including:


 


(1)           the grant to any Obligor or any other person at any time, of a waiver,
covenant not to sue or other indulgence;


 


(2)           the release (including a release as part of any novation) or discharge
of any Obligor or any other person;


 


(3)           the cessation of the obligations, in whole or in part, of any Obligor or
any other person under any Transaction Document or any other document or
agreement;


 


(4)           the liquidation of any Obligor or any other person;


 


(5)           any arrangement, composition or compromise entered into by the Lender,
any Obligor or any other person;


 


(6)           any Transaction Document or any other document or agreement being in
whole or in part illegal, void, voidable, avoided, unenforceable or otherwise
of limited force or effect;


 


(7)           any extinguishment, failure, loss, release, discharge, abandonment,
impairment, compounding, composition or compromise, in whole or in part of any
Transaction Document or any other document or agreement;


 


38





















 


(8)                                  any Security Interest being given to the Lender
by any Obligor or any other person;


 


(9)           any alteration, amendment, variation,
supplement, renewal or replacement of any Transaction Document or any other
document or agreement;


 


(10)         any moratorium or other suspension of any
power;


 


(11)         the Lender, a Controller or attorney exercising
or enforcing, delaying or refraining from exercising or enforcing, or being not
entitled or unable to exercise or enforce any power;


 


(12)         the Lender obtaining a judgment against any
Obligor or any other person for the payment of any of the Money Owing;


 


(13)         any transaction, agreement or arrangement that
may take place with the Lender, any Obligor or any other person;


 


(14)         any payment to the Lender, a Controller or
attorney, including any payment which at the payment date or at any time after
the payment date is in whole or in part illegal, void, voidable, avoided or
unenforceable;


 


(15)         any failure to give effective notice to any
Obligor or any other person of any default under any Transaction Document or
any other document or agreement;


 


(16)         any legal limitation, disability or incapacity
of any Obligor or of any other person;


 


(17)         any breach of any Transaction Document or any
other document or agreement;


 


(18)         the acceptance of the repudiation of, or
termination of, any Transaction Document or any other document or agreement;


 


(19)         any Money Owing being irrecoverable for any
reason;


 


(20)         any disclaimer by any Obligor or any other
person of any Transaction Document or any other document or agreement;


 


(21)         any assignment, novation, assumption or
transfer of, or other dealing with, any powers or any other rights or
obligations under any Transaction Document or any other document or agreement;


 


(22)         the opening of a new account of any Obligor
with the Lender or any transaction on or relating to the new account;


 


39





















 


(23)         any prejudice (including material prejudice) to
any person as a result of any thing done or omitted by the Lender, any Obligor
or any other person;


 


(24)         any prejudice (including material prejudice) to
any person as a result of the Lender, a Controller or attorney or any other
person selling or realising any property the subject of a Security Interest at
less than the best price;


 


(25)         any prejudice (including material prejudice) to
any person as a result of any failure or neglect by the Lender, a Controller or
attorney or any other person to recover the Money Owing from any Obligor or by
the realisation of any property the subject of a Security Interest;


 


(26)         any prejudice (including material prejudice) to
any person as a result of any other thing;


 


(27)         the receipt by the Lender of any dividend,
distribution or other payment in respect of any liquidation;


 


(28)         the failure of any other Guarantor or any other
person who is intended to become a co-surety or co-indemnifier of that
Guarantor to execute this agreement or any other document; or


 


(29)         any other act, omission, matter or thing
whether negligent or not.


 


(b)           Clause 13.12(a) applies irrespective of:


 


(1)           the consent or knowledge or lack of consent or
knowledge, of the Lender, any Obligor or any other person of any event
described in clause 13.12(a); or


 


(2)           any rule of law or equity to the contrary.


 


13.13      No competition


 


(a)           Until the Money Owing have been fully paid and this clause 13 has
been finally discharged, a Guarantor is not entitled to:


 


(1)           be subrogated to the Lender;


 


(2)           claim or receive the benefit of any Security
Interest, Guarantee or other document or agreement of which the Lender has the
benefit;


 


(3)           claim or receive the benefit of any moneys held
by the Lender;


 


(4)           claim or receive the benefit of any power;


 


40





















 


(5)           either directly or indirectly to prove in,
claim or receive the benefit of any distribution, dividend or payment arising
out of or relating to the liquidation of any Obligor liable to pay the Money
Owing, except in accordance with clause 13.13(b);


 


(6)           make a claim or exercise or enforce any right,
power or remedy (including under an Security Interest or Guarantee or by way of
contribution) against any Obligor liable to pay the Money Owing;


 


(7)           accept, procure the grant of or allow to exist
any Security Interest in favour of a Guarantor from any Obligor liable to pay
the Money Owing;


 


(8)           exercise or attempt to exercise any right of
set-off against, or realise any Security Interest taken from, any Obligor
liable to pay the Money Owing; or


 


(9)           raise any defence or counterclaim in reduction
or discharge of its obligations under this clause 13.


 


(b)                                 If required by the Lender, a Guarantor must prove
in any liquidation of any Obligor liable to pay the Money Owing for all money
owed to the Guarantor.


 


(c)                                  All money recovered by a Guarantor from any
liquidation or under any Security Interest or Guarantee from any Obligor liable
to pay the Money Owing must be immediately paid by the Guarantor to the Lender
to the extent of the unsatisfied liability of the Guarantor under this
clause 13.


 


(d)                                 A Guarantor must not do or seek, attempt or
purport to do anything referred to in clause 13.13(a).


 


13.14                 Continuing guarantee


 


This clause 13 is a continuing obligation
of each Guarantor, despite:


 


(a)                                  any settlement of account; or


 


(b)                                 the occurrence of any other thing,


 


and remains in full force and effect until:


 


(c)                                  all the Money Owing have been paid in full; and


 


(d)                                 this clause 13 has been finally discharged
by the Lender.


 


41





















 


13.15                 Variation


 


This clause 13 extends to cover the
Transaction Documents as amended, varied or replaced, whether with or without
the consent of any one or more of the Guarantors, including any increase in the
limit or maximum principal amount available under a Transaction Document.


 


13.16                 Judgments


 


A final judgment obtained against a relevant
Obligor is conclusive as against each Guarantor.


 


14                                  Change in Circumstances


 


14.1                        Increased Costs


 


(a)                                  If the effect of the introduction of, or a
change in, or a change in the interpretation or application of, any law or
regulation (including any law or regulation relating to Taxation, reserve asset,
special deposit, cash ratio, liquidity or capital adequacy requirements or any
other form of banking or monetary controls) applicable to the Lender occurring
after the date of this agreement or compliance by the Lender with any such law
or regulation is to:


 


(1)           impose an additional cost on the Lender as a
result of it having entered into any Finance Document or making or maintaining
any Principal Outstanding or of it performing its obligations under any Finance
Document;


 


(2)           reduce any amount payable to the Lender under
any Finance Document or reduce the effective return on its capital or any class
of its capital; or


 


(3)           result in the Lender making any payment or
forgoing any interest or other return on or calculated by reference to any
amount received or receivable by the Lender from any other party under any
Finance Document,


 


(each such increased cost, reduction, payment, forgone
interest or other return being referred to in this clause 14.1 as an “increased
cost”), then:


 


(4)           the Lender will notify the Borrower of that
event as soon as reasonably practicable after becoming aware of it; and


 


(5)           on demand from time to time by the Lender, the
Borrower will pay to the Lender the amount which the Lender determines is
necessary to compensate the Lender for that increased cost (or the portion of
that increased cost which is, in the opinion of the Lender, attributable to it
entering into the Finance Documents, making or maintaining its participation in
any Advance, or maintaining the Facility).


 


42





















 


(b)           The
certificate of the Lender specifying the amount of compensation payable under
clause 14.1(a) and the basis for the calculation of that amount is, in the
absence of manifest error, conclusive.


 


(c)           The
Borrower will not be obliged to compensate the Lender under clause 14.1(a) in
relation to any increased cost attributable to a change in the rate of Tax on
the overall net income of the Lender.


 


(d)           If any
Related Body of the Lender suffers a cost which would have been recoverable by
the Lender under this clause 14.1 if that cost had been imposed on the
Lender, the Lender will be entitled to recover the amount of that cost under
this clause 14.1 on behalf of the relevant Related Body.


 


14.2                        Illegality


 


If it is or becomes contrary to any law or
regulation for the Lender to make the Facility available, maintain any Money
Owing or the Facility Limit, then the Lender may give notice to that effect to
the Borrower, whereupon:


 


(a)           the
Borrower will immediately prepay all of the Money Owing, and pay all other
amounts due to the Lender under the Finance Document; and


 


(b)           the
undrawn Facility Limit (if any) will immediately be cancelled and the Lender
will have no further obligation to make the Facility available.


 


14.3                        Mitigation


 


If circumstances arise in relation to the
Lender which would or may result in:


 


(a)                                  a demand for compensation by it under
clause 14.1 (Increased Costs); or


 


(b)                                 an obligation to prepay any amount to it under
clause 14.2 (Illegality),


 


then, without in any way limiting, reducing or
otherwise qualifying the obligations of the Borrower under the clauses referred
to above, the Lender will notify the Borrower as soon as reasonably practicable
after becoming aware of those circumstances and, in consultation with the
Borrower, take such reasonable steps as may be open to it to mitigate the
effects of those circumstances, although the Lender will not be obliged to take
any action if to do so might have an adverse effect on its business, operations
or financial condition or cause it to incur liabilities or obligations
(including Taxation) which (in its sole opinion) are material or would reduce
its return in relation to the Facility.


 


43

















 


15                                  Set-off


 


15.1                        Set-off rights


 


The Lender may while an Event of Default is
subsisting:


 


(a)                                  set-off or otherwise apply sums standing to the
credit of any Obligor’s accounts with the Lender (irrespective of the terms
applicable to those accounts and whether or not those sums are then due for
repayment to the Lender); and


 


(b)                                 set-off any other obligations (whether or not
then due for performance) owed by the Lender to the Obligor,


 


against any liability of the Obligor to the
Lender under the Finance Documents.


 


15.2                        Unliquidated claims


 


If the obligation or liability described under
clause 15.1 is unliquidated or unascertained, the Lender may set-off the amount
which it estimates (in good faith) will be the final amount of that obligation
or liability once it becomes liquidated or ascertained.


 


16                                  Indemnities


 


16.1                        Indemnity


 


(a)                                  Each Obligor indemnifies the Lender against any
loss the Lender incurs or is liable for in connection with:


 


(1)           the occurrence of any Default;


 


(2)           the Lender exercising its powers consequent upon or arising out of the
occurrence of any Default;


 


(3)           any failure by an Obligor to pay any amount due under a Finance Document
on its due date;


 


(4)           any Advance required by a Drawdown Notice not being made for any reason
(other than as a result of a default by the Lender) on the Drawdown Date
specified in the relevant Drawdown Notice;


 


(5)           the payment or recovery of an amount in connection with the Finance
Documents in a currency other than the currency required under the Finance
Document;


 


(6)           the occupation, use or ownership of any Security Property by the owner
of that property or any of its employees or agents; and


 


44
















 


(7)           the Transaction Documents or any of the matters, things, events or
circumstances contemplated by them.


 


(b)                                 The indemnity in clause 16.1(a), includes:


 


(1)           the amount determined by the Lender as being incurred by reason of the
liquidation or re-employment of deposits or other funds acquired or contracted
for by the Lender to fund or maintain the Facility; and


 


(2)           loss of margin.


 


16.2                        Continuing indemnities


 


(a)           Each
indemnity of an Obligor in a Finance Document is a continuing obligation of the
Obligor, separate from its other obligations and remains in full force and
effect until the Money Owing have been fully and finally repaid and each
Security finally discharged.


 


(b)           Each
indemnity of an Obligor survives the termination of any Transaction Document.


 


(c)           Any
settlement or discharge of any claim under any indemnity in a Finance Document will
be conditional on no payment made under that indemnity being avoided or set
aside or ordered to be refunded by virtue of any provision of any enactment
relating to bankruptcy, insolvency or liquidation.


 


17                                  Fees Tax and costs


 


17.1                        Fees


 


The Borrower must pay the Lender the following
fees:


 


(a)                                  (establishment fee)
a non-refundable establishment fee equal to $130,000 of which $25,000 has been
paid and $105,000 is payable on the date of the first Advance under this
agreement;


 


(b)                                 (line fee – Tranche A)
a fee equal to 0.50% per annum of the Tranche A Limit, which:


 


(1)           subject to 17.1(b)(3), accrues daily from (and including) the date of
this agreement up to (and including) the Termination Date;


 


(2)           is calculated on the basis of a 365 day year; and


 


(3)           is payable quarterly in advance, commencing on the date of this
agreement, and ending on the Termination Date or, if earlier, on the day on
which the Lender’s commitment under the Facility reduces to zero.


 


45





















 


(c)                                  (line fee – Tranche B)
a fee equal to 1.50% per annum of the Tranche B Limit, which:


 


(1)           subject to 17.1(c)(3), accrues daily from (and including) the date of
this agreement up to (and including) the Termination Date;


 


(2)           is calculated on the basis of a 365 day year; and


 


(3)           is payable quarterly in advance, commencing on the date of this
agreement, and ending on the Termination Date or, if earlier, on the day on
which the Lender’s commitment under the Facility reduces to zero.


 


17.2                        Tax


 


(a)           The
Borrower must pay any Tax, other than an Excluded Tax in respect of the Lender,
which is payable in respect of a Finance Document (including in respect of the
execution, delivery, performance, release, discharge, amendment or enforcement
of a Finance Document).


 


(b)           The
Borrower must pay any fine, penalty or other cost in respect of a failure to
pay any Tax described in clause 17.2(a) except to the extent that the
fine, penalty or other cost is caused by the Lender’s failure to lodge money
received from the Borrower within 5 Business Days before the due date for
lodgement.


 


(c)           The
Borrower indemnifies the Lender against any amount payable under this
clause 17.2.


 


17.3                        GST


 


(a)           Words
or expressions defined in the GST Act have the same meaning in this clause,
unless it is clear that a different meaning is intended.


 


(b)           Unless
otherwise specifically stated, sums payable or consideration provided or in
connection with this agreement will be expressed as exclusive of any applicable
amount of GST.


 


(c)           Where
the Lender makes a Taxable Supply under or in connection with the Finance
Documents and GST is imposed on that supply, the Lender will be entitled to:


 


(1)           increase the consideration otherwise provided for that supply under the
Finance Document by the amount of that GST; and


 


(2)           otherwise recover from the recipient the amount of that GST.


 


46





















 


(d)                                 The Lender must issue a Tax Invoice to the
recipient of the supply no later than 5 Business Days after payment to the
Lender of the GST inclusive consideration for that supply.


 


17.4                        Costs and expenses


 


The Borrower must pay to the Lender the amount
of all costs and expenses (including legal and consultant fees, out-of-pocket
expenses and administration costs) incurred by the Lender in connection with:


 


(a)                                  the negotiation, preparation, execution,
delivery, completion, registration of the Transaction Documents, and all
documents, matters and things referred to in, incidental to or contemplated by
any Transaction Document;


 


(b)                                 any amendment, variation, consent, approval or
discharge relating to any Transaction Document (and documents, matters or
things referred to in any Transaction Document); and


 


(c)                                  the preservation, enforcement or waiver or
attempted preservation or enforcement of any of the Lender’s rights under any
Transaction Document (and any documents referred to in any Transaction
Document).


 


18                                  Assignment or novation


 


18.1                        Assignment by Obligors


 


Each Obligor may not assign, novate or
otherwise deal with any of its rights and obligations under the Finance
Documents without the prior written consent of the Lender.


 


18.2                        Assignment by Lender


 


The Lender may assign, novate or otherwise deal
with its rights and obligations under the Finance Documents.


 


18.3                        Disclosure of Information


 


The Lender may disclose to a proposed assignee
or transferee or any sub-participant, risk participant or other participant
proposing to enter or having entered into a contract with the Lender regarding
the Finance Documents (and their respective advisers) any information in the
possession of the Lender relating to an Obligor, any Security Property or any
of the Transaction Documents (or any of the matters or things contemplated by,
or referred to in, them).


 


18.4                        Transfers by Lender


 


The Lender may, without notifying any Obligor,
assign, transfer, sub-participate or otherwise deal with:


 


47

















 


(a)                                  any of its rights under the Finance Documents;
or


 


(b)                                 its exposure (whether actual or contingent),
risk or liability in respect of the Finance Documents,


 


to any entity established for the purpose of
securitisation.


 


18.5                        Assist


 


Each Obligor must do any thing which the Lender
reasonably requests including, executing documents or amending any Transaction
Document, to effect any assignment, novation or other transfer under this
clause 18.


 


19                                  Miscellaneous


 


19.1                        Notices


 


(a)                                  Any notice, demand, consent or other communication
given or made under this document must be:


 


(1)           clearly readable;


 


(2)           signed by the party giving or making it (or signed on behalf of that
party by its authorised representative); and


 


(3)           left at the address or sent by pre-paid security post (air mail if
outside Australia) to the address or to the fax number of the recipient, in
each case, as set out at the beginning of this agreement.


 


(b)                                 A party may change its address or fax number
for the purpose of service by giving notice of that change to the other party.


 


(c)                                  Any communication will be taken to be received
by the recipient:


 


(1)           in the case of a letter, on the 3rd (7th, if sent outside the country in
which the letter is posted) Business Day after the date of posting;


 


(2)           in the case of a facsimile, on production of a transmission report by
the machine from which the facsimile was sent which indicates that the
facsimile communication was sent in its entirety to the fax number of the
recipient; and


 


(3)           if the time of dispatch of a facsimile is not on a Business Day, or is
after 5.00 pm (local time) on a Business Day, it will be taken to have been
received at the commencement of business on the next Business Day.


 


48





















 


19.2                        Governing law


 


(a)                                  This agreement is governed by, and construed in
accordance with, the laws of New South Wales.


 


(b)                                 Each Obligor irrevocably submits to the
non-exclusive jurisdiction of the courts of New South Wales.


 


(c)                                  Each Obligor irrevocably waives any objection
to the venue of any legal process on the basis that the process has been
brought in an inconvenient forum.


 


19.3                        Financier’s statement conclusive


 


A certificate or statement, signed on behalf of
the Lender by any of its Authorised Representatives, in relation to any amount,
calculation, interest rate under the Finance Documents is conclusive and
binding on each Obligor, except in the case of manifest error.


 


19.4                        Amendment


 


This agreement may only be amended or varied in
writing signed by the parties.


 


19.5                        Invalidity


 


(a)                                  Any provision of, or the application of any
provision of, any Finance Document which is prohibited in any jurisdiction is,
in that jurisdiction, ineffective only to the extent of that prohibition.


 


(b)                                 Any provision of, or the application of any
provision of, any Finance Document which is void, illegal or unenforceable in
any jurisdiction does not affect the validity, legality or enforceability of
that provision in any other jurisdiction or of the remaining provisions in that
or any other jurisdiction.


 


19.6                        Waivers


 


(a)                                  Waiver of any right arising from a breach of
the Finance Documents or of any power arising on default under any Finance
Document must be in writing and signed by the party granting the waiver.


 


(b)                                 A failure or delay in exercising, or partial
exercise of, any right or power under any Finance Document will not operate as
a waiver of that right or power, or preclude any further exercise of that right
or power.


 


(c)                                  The rights and remedies provided in the Finance
Documents are cumulative and not exclusive of any rights and remedies provided
by law and all those rights and remedies will, except where expressly provided
otherwise in any Finance Document, be available to the Lender.


 


49





















 


19.7                        Entire agreement


 


The contents of the Finance Documents
constitute the entire agreement between the parties and supersede any prior
negotiations, representations, understandings or arrangements made between the
parties regarding the subject matter of the Finance Documents, whether orally
or in writing.


 


19.8                        Further assurance


 


Each Obligor must do anything (including
execute any document), and must ensure that its employees and agents do
anything (including execute any agreement), that the Lender may reasonably
require to give full effect to the Finance Documents.


 


19.9                        Counterparts


 


(a)                                  This agreement may be executed in any number of
counterparts.


 


(b)                                 All counterparts taken together will be deemed
to constitute one instrument.


 


19.10                 Attorneys


 


Each attorney who executes this agreement
declares that the attorney has no notice of any revocation, suspension or
variation of the power of attorney appointing that attorney.


 


20                                  Definitions and interpretation


 


20.1                        Definitions


 


In this agreement the following definitions
apply:


 


Accession Document means an agreement substantially in the form
set out in Schedule 8 under which a Group Member becomes a Guarantor
and/or the Borrower;


 


Accounting Quarter means each period of approximately
13 weeks ending on the last day of September, December, March and June in
a Financial Year;


 


Additional Guarantor means each entity which becomes a guarantor
under this agreement in accordance with clause 10.1 (Additional Guarantors).


 


Advance means the principal amount of advances made or
to be made under the Facility.


 


50

















 


Annual Accounts means the audited annual Financial Statements
of the Group and each Group Member delivered or to be delivered to the Lender
under clause 9.10(c)(1) (Financial Statements);


 


Approved Projections means the financial projections and cashflow
forecast for the business of the Group for a Financial Year prepared by the
directors of the Borrower on a basis consistent with the Generally Accepted
Accounting Principles and approved by the Lender.


 


Approved Purpose means a purpose described in clause 1.2.


 


Attorney means an attorney appointed under a Finance
Document.


 


Auditors means any firm of accountants acceptable to
the Lender.


 


Authorisation means any approval, authorisation,
certificate, consent, exemption, filing, licence, permit, notarisation, notice,
registration or waiver, however described, and any renewal of or variation to
any of them.


 


Authorised Representative means:


 


(a)                                  in relation to the Lender any officer of the
Lender whose title or office includes the word “manager” or “director” and any
other person appointed by the Lender to act as an Authorised Representative for
the purposes of this agreement; and


 


(b)                                 in relation to an Obligor, a director or
secretary, or a person notified in writing to the Lender to be an Authorised
Representative, of the Borrower.


 


Availability Period means:


 


(a)                                  in respect of Tranche A, the period commencing
on (and including) the date of this agreement and ending on (and including) the
date 30 days after the date of this agreement; and


 


(b)                                 in respect of Tranche B, the period commencing
on the date of this agreement and ending on the date 30 days prior to the
Termination Date or such other date agreed to by the Lender.


 


Bank Bill means a Bill of Exchange that has been
accepted by a Reference Bank.


 


Bank Bill Rate means, on any Rate Set Date:


 


(a)           the
rate, expressed as a yield per cent per annum (rounded up (if necessary) to 4
decimal places), that is quoted as the average bid rate on the Bloomberg
monitor system page “AUSTRALIA MMKT RATES” (or any page that replaces that
page) at about 10.30 am on the Rate Set Date for Bank Bills that have a tenor
equivalent to 90 days; or


 


51

















 


(b)                                 if the rate described in paragraph (a) above is
not displayed, the rate determined by the Lender to be the average of the
buying rates quoted to the Lender by 3 Reference Banks at about 11.00 am on the
Rate Set Date for Bank Bills that have a tenor equivalent to 90 days; or


 


(c)                                  if there are less than 3 Reference Banks
quoting the buying rates described in paragraph (b) above, the rate notified by
the Lender to the Borrowers to be the Lender’s cost of funding determined in
good faith for a 90 day period.


 


Bill of Exchange means a bill of exchange (as defined in the
Bills of Exchange Act 1909 (Cth)).


 


Borrowing Base means, in respect of a date, the aggregate of:


 


(a)                                      70% of the balance of the Eligible Receivables
on that date; and


 


(b)                                     50% of the balance of the Eligible Inventory on
that date.


 


Business Day means a day (other than a Saturday, Sunday or
public holiday) on which banks are open for general banking business in Sydney.


 


Business Plan means the business plan for the Group for a
Financial Year in a form approved by the Lender.


 


Cashflow means EBITDA (as defined in clause 9.14) for
the relevant Testing Period:


 


(a)                                    plus the amount of any decrease or minus the
amount of any increase in working capital of the Group during that Testing
Period;


 


(b)                                   plus any Tax rebate received in cash, or minus
any Tax paid in cash, during that Testing Period;


 


(c)           minus
all capital expenditure during that Testing Period;


 


(d)                                   plus the amount of any dividends or other
profit distributions (net of Tax) received in cash by any Group Member during
that Testing Period from companies which are not Group Members; and


 


(e)                                    minus the amount of any dividends or other
profit distributions paid by the Borrower during that Testing Period.


 


Change in Control means:


 


(a)                                      if the persons who Control the Borrower on the
date of this agreement cease to Control the Borrower (but, for the avoidance of
doubt, excluding any change in the Control of the shareholders of the
Borrower); or


 


(b)                                     any Group Member (other than the Borrower) ceases
to be a wholly owned Subsidiary of the Borrower.


 


52

















 


Control has the same meaning given to that term Section
50AA of the Corporations Act in the Corporations Act.


 


Controller has the same meaning given to that term in the
Corporations Act.


 


Core Business means, as at the date of this agreement, the
business of designing and manufacturing polyethylene rainwater storage tanks in
Australia.


 


Corporations Act means the Corporations Act 2001 (Cth).


 


Debtor means, in respect of any Receivable, each
person who is a debtor, guarantor or security provider in respect of that
Receivable.


 


Default means an Event of Default or a Potential Event
of Default.


 


Default Rate means the aggregate of 2% per annum and the
applicable Interest Rate.


 


Dollar,  AUD and $ means the lawful currency of Australia.


 


Drawdown Date means the date on which an Advance is, or is
proposed to be, provided under this agreement.


 


Eligible Inventory means all goods held by an Obligor which have
completed the manufacturing process and are ready for sale to customers of an
Obligor, up to a maximum value at any time of $4,000,000.


 


Eligible Receivables means all Receivables which are not, or will
not be, outstanding for more than 90 days.


 


Environment means any and all living organisms (including
man), ecosystems, gases, air, vapours, liquids, water, land, surface and
sub-surface soils, rock and all other natural resources or part of such
resources, including artificial or man-made buildings, structures or
enclosures.


 


Environmental Approval means any Authorisation required under or in
relation to Environmental Laws.


 


Environmental Laws means all international, national, federal,
state or local statutes, orders, regulations or other law or subordinate legislation
or common law or guidance notes or regulatory codes of practice, circulars and
equivalent controls including judicial interpretation of any of the foregoing
concerning the Environment or health and safety which are in existence now or
in the future and are binding at any time on each Group Member in the relevant
jurisdiction in which that company has been or is operating (including by the
export of its products or its waste to that jurisdiction).


 


Event of Default means any of the events or circumstances
described in clause 11.1.


 


53

















 


Excess Cashflow means Cashflow for a Financial Year less the
aggregate of the total Debt Service for that Financial Year.


 


Excluded Tax means a Tax imposed by any jurisdiction on the
net income of the Lender  but not a Tax:


 


(a)                                  calculated on or by reference to the gross
amount of any payment (without allowance for any deduction) derived by the
Lender under a Finance Document or any other document referred to in a Finance
Document; or


 


(b)                                 imposed as a result of the Lender being
considered a resident of or organised or doing business in that jurisdiction
solely as a result of it being a party to a Finance Document or any transaction
contemplated by a Finance Document.


 


Existing Financial Indebtedness means the Financial Indebtedness provided by
National Australia Bank Limited ABN 12 004 044 937 to the Borrower prior to the
date of this agreement.


 


Existing Shareholder Loans means the outstanding shareholder loans from
Channell Commercial Corporation with a value of $3,467,919 as at 31 August
2007, with interest payable quarterly on the loans at an interest rate of 5.25%
per annum.


 


External Administrator means an administrator, Controller, trustee,
provisional liquidator, liquidator or any other person (however described)
holding or appointed to an analogous office or acting in an analogous capacity.


 


Facility means the senior secured cash advance
facilities provided by the Lender to the Borrower under and in accordance with
the Finance Documents.


 


Facility Limit means $13,000,000 or such other amount as
agreed between the parties from time to time.


 


Finance Documents means this agreement, each Security, and any
other document agreed by the Lender and any Borrower to be a Finance Document
for the purposes of this agreement.


 


Financial Indebtedness means any debt or other monetary liability in
respect of moneys borrowed or raised or any financial accommodation including
under or in connection with any:


 


(a)                                  any Bank Bill, debenture, bond, note or loan
stock or other similar instrument;


 


(b)                                 acceptance or documentary credit;


 


(c)                                  receivable sold or discounted (otherwise than
on a non-recourse basis);


 


54

















 


(d)                                 agreement for the deferral of a purchase price
or other payment for more than 90 days in relation to the acquisition of any
asset or service;


 


(e)                                  any finance or capital lease, hire purchase,
credit sale or conditional sale agreement;


 


(f)                                    agreement for the payment of capital or premium
on the redemption of any preference shares;


 


(g)                                 any Guarantee;


 


(h)                                 obligation to deliver goods or provide services
paid for more than 90 days in advance by a financier; or


 


(i)                                     any other amount raised under any other
transaction having the commercial effect of a borrowing,


 


irrespective
whether the debt or liability:


 


(j)                                     is present or future;


 


(k)                                  is actual, prospective, contingent or
otherwise;


 


(l)                                     is at any time ascertained or unascertained;


 


(m)                               is owed or incurred alone or severally or
jointly or both with any other person; or


 


(n)                                 comprises any combination of the above.


 


Financial Statements means, in relation to an entity, the following
financial statements and information in relation to the entity, prepared for
its financial half year or financial year:


 


(a)                                  a statement of financial performance;


 


(b)                                 a statement of financial position; and


 


(c)                                  a statement of cashflows.


 


Financial Year means the period of 12 months ending on
31 December in each year.


 


Generally Accepted Accounting
Principles means, in
respect of:


 


(a)                                  each Group Member incorporated in Australia,
generally accepted accounting principles in Australia; or


 


(b)                                 in respect of each Group Member incorporated in
a jurisdiction other than Australia, generally accepted accounting principles
in that jurisdiction.


 


55

















 


Government Agency means any government or government department,
any governmental, semi-governmental or judicial authority or person, any
statutory body or authority or body exercising any administrative or
legislative function or that has legal power to require another person to act
or not to act in a particular way.


 


Group means the Borrower and each of its
Subsidiaries.


 


Group Member means any member of the Group.


 


Group Structure Diagram means the group structure diagram in
Schedule 5 or any replacement group diagram provided in accordance with
clause 9.10(h)(7).


 


GST means GST as defined in the GST Act or other
relevant legislation and regulations.


 


GST Act means A New Tax System (Goods and Services
Tax) Act 1999.


 


Guarantee means any guarantee, suretyship, letter of
credit, letter of comfort or any other obligation:


 


(a)                                  to provide funds (whether by the advance or
payment of money, the purchase of or subscription for shares or other
securities, the purchase of assets or services, or otherwise) for the payment
or discharge of;


 


(b)                                 to indemnify any person against the
consequences of default in the payment of; or


 


(c)           to
be responsible for,


 


any debt or monetary liability
of another person or the assumption of any responsibility or obligation in
respect of the insolvency or the financial condition of any other person.


 


Guarantor means each Original Guarantor and each
Additional Guarantor.


 


Insolvency Event means, in respect of a person:


 


(a)                                  an order is made, or the person passes a
resolution or takes any other steps, for its winding up;


 


(b)                                 an application is made for its winding up and,
if the application is capable of being set aside is not set aside within 5
Business Days of being made;


 


(c)                                  any of the following occurs:


 


(1)                                  an External Administrator is appointed or any
steps are taken to appoint an External Administrator; or


 


(2)                                  a resolution is passed to appoint an External
Administrator,


 


56





















 


to the person or any asset of the person unless, in
the case of an appointment, the Lender is satisfied that the appointment of the
External Administrator is capable of being set aside, and is set aside with 5
Business Days;


 


(d)                                 a Security Interest is enforced, or becomes
capable of being enforced against an asset of the person in respect of an
amount in excess of $250,000;


 


(e)                                  a distress, execution, attachment or other
process is levied, issued against or enforced upon an asset of the person which
is not set aside or satisfied within 5 Business Days


 


(f)                                    a judgement is obtained against the person
having an aggregate value of $250,000 which is not set aside or satisfied
within 5 Business Days;


 


(g)                                 the person:


 


(1)                                  suspends payment of its debts generally;


 


(2)                                  is unable, or states that it is unable, to pay
its debt when they fall due;


 


(3)                                  takes any action seeking protection from
creditors or bankruptcy; or


 


(4)                                  is presumed by applicable law to be insolvent;


 


(h)                                 the person enters into or takes any step to
enter into any compromise or arrangement with, or assignment for the benefit
of, any of its members or creditors;


 


(i)                                     the person implements a merger, demerger or
scheme of arrangement with any person;


 


(j)                                     if a registered corporation under the
Corporations Act, the person is deregistered, or any steps are taken to
deregister the person under the Corporations Act;


 


(k)                                  any analogous event, circumstance, matter or
thing,


 


unless, in the case of paragraphs (h), (i) or (j) it occurs as part of a
solvent reconstruction, amalgamation, merger or consolidation that has been
approved by the Lender.


 


Intellectual Property means the Intellectual Property Rights owned
or used by a Group Member throughout the world or the interests of any Group
Member in any of those Intellectual Property Rights, together with the benefit
of all agreements entered into or the benefit of which is enjoyed by any Group
Member relating to the use or exploitation of any of those Intellectual
Property Rights.


 


57

















 


Intellectual Property Rights means all patents and patent applications,
trade and service marks and trade and service mark applications (and all
goodwill associated with any patents, trade and service marks, whether registered,
under application for registration or otherwise), all brand and trade names,
all copyrights and rights in the nature of copyright, all design rights, all
registered designs and applications for registered designs, all inventions, all
trade secrets, all know-how and all other intellectual property rights
throughout the world.


 


Interest means interest and amounts in the nature of
interest paid or payable in relation to any Financial Indebtedness including:


 


(a)                                  the interest element of finance leases;


 


(b)                                 discount and acceptance fees payable (or
deducted) in relation to any Financial Indebtedness;


 


(c)                                  fees payable in connection with the issue or
maintenance of any bond, letter of credit, guarantee or other assurance against
financial loss which constitutes Financial Indebtedness and is issued by a
third party on behalf of a Group Member;


 


(d)                                 repayment and prepayment premiums payable or
incurred in repaying or prepaying any Financial Indebtedness; and


 


(e)                                  commitment, utilisation and non-utilisation fees
payable or incurred in relation to Financial Indebtedness;


 


Interest Period means:


 


(a)                                  in respect of the first Interest Period for an
Advance, the period from (and including) the date of the Advance until (and
including) the end of that calendar month;


 


(b)                                 in respect of each Interest Period for that
Advance (other than the first Interest Period and the last Interest Period),
the period from (and including) the first day of the relevant calendar month
until (and including) the last day of that calendar month; and


 


(c)                                  in respect of the last Interest Period for that
Advance, the period from (and including) the first day of the calendar month
until (and including) the Termination Date.


 


Interest Rate means, in respect of an Advance, for any
Interest Period, the aggregate of the Bank Bill Rate for that Interest Period
and the Margin.


 


Listing means admission to trading of all or any part
of the share capital of any Group Member on any recognised investment exchange
or any other sale or issue by way of flotation or public offering or any
equivalent circumstances in relation to any Group Member in any jurisdiction or
country.


 


Margin means, subject to clause 4.4:


 


58

















 


(a)                                  in respect of the Tranche A Advance, 6.50% per
annum; and


 


(b)                                 in respect of a Tranche B Advance, 5.50% per
annum.


 


Material Adverse Effect means any effect, event or matter:


 


(a)                                  which is materially adverse to:


 


(1)                                    the assets or financial condition of the Group
taken as a whole; or


 


(2)                                    the ability of the Group taken as a whole to
perform any of its obligations under any Finance Document; or


 


(b)                                 which results in any Security not providing to
the Lender security over the assets expressed to be secured under that
Security.


 


Money Owing means the aggregate of:


 


(a)                                  the Principal Outstanding;


 


(b)                                 all other debts and monetary liabilities of the
Obligors, under or in connection with the Finance Documents and in any
capacity,


 


irrespective of whether the
debts or liabilities:


 


(c)                                  are present or future;


 


(d)                                 are actual, prospective, contingent or
otherwise;


 


(e)                                  are at any time ascertained or unascertained;


 


(f)                                    are owed or incurred by or on account of an
Obligor alone, or severally or jointly with any other person;


 


(g)                                 are owed to or incurred for the account of the
Lender alone, or severally or jointly with any other person;


 


(h)                                 are owed to any other person as agent (whether
disclosed or not) for or on behalf of the Lender;


 


(i)                                     are owed or incurred as principal, interest,
fees, charges, Taxes, damages (whether for breach of contract or tort or
incurred on any other ground), losses, costs or expenses, or on any other
account;


 


(j)                                     are owed to or incurred for the account of the
Lender directly or as a result of:


 


(1)                                    the assignment or transfer to the Lender of any
debt or liability of an Obligor (whether by way of assignment, transfer or
otherwise); or


 


59

















 


(2)                                    any other dealing with any such debt or
liability;


 


(k)                                  are owed to or incurred for the account of the
Lender before the date of this agreement or before the date of any assignment
of this agreement to the Lender by any other person or otherwise; or


 


(l)                                     comprise any combination of the above.


 


Monthly Accounts means the monthly consolidated and unconsolidated
management accounts of the Group and each Obligor delivered or to be delivered
to the Lender under clause 9.10(c)(2) (Financial Statements).


 


Obligor means the Borrower and each Guarantor.


 


Permitted Financial Indebtedness means:


 


(a)                                  Financial Indebtedness of which full details
have been given to the Lender in writing before the date of this agreement and
to which the Lender has consented in writing;


 


(b)                                 any liability under any agreement entered into
in the ordinary course of ordinary business for the acquisition of any asset or
service where payment for the asset or service is deferred for a period of not
more than 90 days;


 


(c)                                  finance leases or other agreements entered into
the ordinary course of the ordinary business of the relevant Group Member
(including the leases entered into by a Group Member pursuant to clause
9.3(a)(4)) where the aggregate capital element of all future rentals under all
those finance leases and agreements (determined in accordance with current
accounting practice) does not exceed $350,000 (or its equivalent in other
currencies) per annum;


 


(d)                                 Existing Shareholder Loans;


 


(e)                                  Financial Indebtedness under the Finance
Documents; and


 


(f)                                    Financial Indebtedness approved by the Lender
in writing.


 


Permitted Security Interest means:


 


(a)                                  a Security Interest of which full details have
been given to the Lender in writing before the date of this agreement and to
which the Lender has consented in writing;


 


(b)                                 a Security Interest created after the date of
this agreement, if:


 


(1)                                  the Lender has consented to that Security
Interest and to a maximum amount which it may secure at any time; and


 


60

















 


(2)                                  the amount secured by that Security Interest
(other than costs, fees and uncapitalised interest) does not increase beyond
the amount in respect of which the Lender has consented;


 


(c)                                  a Security Interest created under a Finance
Document;


 


(d)                                 a lien which arises solely by operation of law
in the ordinary course of ordinary business;


 


(e)                                  a Security Interest granted in favour of a
party other than the Lender where that Security Interest is subject to a deed
of priority in form and substance acceptable to the Lender; or


 


(f)                                    any other Security Interest created with the
prior written consent of the Lender.


 


Potential Event of Default means an event which, with the giving of
notice, the lapse of time, the making of any determination, or any combination
of the foregoing will, or could reasonably be expected to, constitute an Event
of Default.


 


Prepayment Fee means, if the prepayment under clause 5.3(b)
is a full prepayment of the Facility and is made during the period commencing
on (and including):


 


(a)                                  the date of this agreement and ending on (and
including) 30 September 2008, a fee equal to 2.0% of the amount prepaid from
sources other than Excess Cashflow from time to time; or


 


(b)                                 1 October 2008 and ending on (and including)
the Termination Date, a fee equal to 1.0% of the amount prepaid from sources
other than Excess Cashflow from time to time.


 


Principal Outstanding means, at any time, the aggregate face value
of all Advances outstanding at that time under the Facility plus any interest
capitalised in accordance with the Finance Documents.


 


Rate Set Date means the first day of each Accounting Quarter.


 


Receivables means each trade receivable which an Obligor
acquires or originates in the ordinary course of its ordinary business.


 


Reference Bank means each of Australia and New Zealand Banking
Group Limited, Commonwealth Bank of Australia, National Australia Bank Limited,
St.George Bank Limited and Westpac Banking Corporation.


 


Related Body means, regardless of any body’s trustee or
other capacity, a body corporate which would be related under section 50 of the
Corporations Act.


 


61

















 


Report means any report, review, forecast, analysis
or other information provided to the Lender (whether by or on behalf of a Group
Member) in connection with the provision of the Facility.


 


Security means:


 


(a)                                  the fixed and floating charge (incorporating an
equitable mortgage of shares) dated on or about the date of this agreement
between the Borrower, the Original Guarantors and the Lender; and


 


(b)                                 each other Security Interest granted by an
Obligor to the Lender to secure the Money Owing.


 


Security Interest means:


 


(a)                                  a mortgage, pledge, lien, charge (fixed or
floating), assignment by way of security, hypothecation or preferential right,
caveat, title retention arrangement, trust arrangement or set-off other than in
the ordinary course of ordinary business or other arrangement (including any
sale and repurchase agreement or flawed-asset arrangement) having the same or
equivalent commercial effect as a grant of security; or


 


(b)                                 an agreement to create or give any arrangement
referred to in paragraph (a) of this definition.


 


Security Property means any assets, property, rights or
undertakings subject to a Security.


 


Subsidiary means a subsidiary as defined in
section 46 of the Corporations Act.


 


Tax means any tax (including GST), levy, impost,
deduction, charge, duty, compulsory loan or withholding and any related
interest, penalty, fine or expense imposed by any Government Agency.


 


Termination Date means 30 September 2010 or such other date
agreed to by the Lender.


 


Tranche A means the amortising term loan made available
by the Lender under clause 1.1.


 


Tranche A Advance means the principal amount of the advance made
or to be made under Tranche A.


 


Tranche A Limit means $8,000,000 or such other amount as
agreed between the parties from time to time.


 


Tranche B means the revolving loan made available by the
Lender under clause 1.1.


 


Tranche B Advance means the principal amount of revolving
advances made or to be made under Tranche B.


 


62
















 


Tranche B Limit means $5,000,000 or such other amount as agreed between the parties
from time to time.


 


Transaction Documents means the Finance Documents and any other document agreed by the
Lender and any Borrower to be a Transaction Document for the purposes of this
agreement.


 


20.2                        Construction


 


In this agreement, unless a contrary intention
appears, a reference to:


 


(a)                                  a
document being “in the agreed form” means in a form agreed between the Lender
and any borrower.


 


(b)                                 an “agreement”
includes any legally binding arrangement, concession, contract, deed or
franchise (in each case whether oral or written);


 


(c)                                  an “amendment”
includes any amendment, supplement, variation, novation, modification,
replacement or restatement and “amend”, “amending” and “amended” will be
construed accordingly;


 


(d)                                 a “consent”
includes an authorisation, approval, exemption, licence, order, permission or
waiver;


 


(e)                                  a “filing”
includes any filing, registration, recording or notice;


 


(f)                                    a “guarantee”
includes:


 


(1)                                  an indemnity; and


 


(2)                                  any other obligation (whatever called) of any person:


 


(A)                              to pay, purchase, provide funds
(whether by the advance of money, the purchase of or subscription for shares or
other investments, the purchase of assets or services, the making of payments
under an agreement or otherwise) for the payment of, indemnify against the
consequences of default in the payment of, or otherwise be responsible for, any
indebtedness of any other person; or


 


(B)                                to be responsible for the performance
of any obligations by or the solvency of any other person,


 


and “guaranteed” and “guarantor” will be construed accordingly;


 


(g)                                 “including”
means including without limitation and does not limit what else might be
included and “includes” and “included” will be construed accordingly;


 


63





















 


(h)                                 “indebtedness”
includes any obligation (whether incurred as principal, guarantor or as surety)
for the payment or repayment of money, whether present or future, actual or
contingent;


 


(i)                                     “losses”
includes losses, actions, damages, claims, proceedings, costs, demands,
expenses (including fees) and liabilities and “loss” will be construed
accordingly;


 


(j)                                     a
“month” means a period starting on one day in a calendar month and ending on the
numerically corresponding day in the next calendar month, except that:


 


(1)                                  if any such period would otherwise end on a day which is not a
Business Day, it will end on the next Business Day in the same calendar month
or, if none, on the preceding Business Day; and


 


(2)                                  if a period starts on the last Business Day in a calendar month, or
if there is no numerically corresponding day in the month in which that period
ends, that period will end on the last Business Day in that later month,


 


and references to “months” will be construed accordingly;


 


(k)                                  a “person”
includes any person, individual, firm, company, corporation, government, state
or agency of a state or any undertaking or other association (whether or not
having separate legal personality) or any two or more of the foregoing;


 


(l)                                     “principal”
includes in relation to a Bank Bill, the amount stated on the Bank Bill as the
maximum amount payable under the Bank Bill;


 


(m)                               “property”
or an “asset” includes any real or personal, present or future, tangible or
intangible property or asset and any right, interest, revenue or benefit in,
under or derived from the property or asset (including uncalled share capital);


 


(n)                                 a “regulation”
includes any regulation, rule, official directive, request or guideline (whether
or not having the force of law) of any governmental body, agency, department or
regulatory, self-regulatory or other authority or organisation; and


 


(o)                                 the “winding-up”
of any person includes its dissolution and/or termination and/or any equivalent
or analogous proceedings under the law of any jurisdiction in which that person
is incorporated, registered, established or carries on business or to which
that person is subject.


 


20.3                        Other References


 


In this agreement, unless a contrary intention appears:


 


64

















 


(a)                                  a
reference to any person is, where relevant, deemed to be a reference to or to
include, as appropriate, that person’s successors and permitted assignees or
transferees;


 


(b)                                 references
to clauses and schedules are references to, respectively, clauses of and
schedules to this agreement and references to this agreement include its
schedules;


 


(c)                                  a
reference to (or to any specified provision of) any agreement or document
(including the Finance Documents) is to be construed as a reference to that
agreement or document (or that provision) as it may be amended from time to
time, but excluding for this purpose any amendment which is contrary to any
provision of any Finance Document;


 


(d)                                 a
reference to a statute, statutory instrument or accounting standard or any
provision thereof is to be construed as a reference to that statute, statutory
instrument or accounting standard or such provision thereof, as it may be
amended or re-enacted from time to time;


 


(e)                                  a
time of day is a reference to Sydney time;


 


(f)                                    the
index to and the headings in this agreement are inserted for convenience only
and are to be ignored in construing this agreement;


 


(g)                                 words
importing the plural will include the singular and vice versa;


 


(h)                                 a
reference to the drawing, acceptance, endorsement or other dealing of or with a
Bank Bill is to be interpreted by reference to the Bills of Exchange Act 1909
(Cth);


 


(i)                                     a
reference to “current accounting practice” is to accounting principles and
practices applying by law or otherwise which are generally accepted and
consistently applied in Australia, and a reference to an accounting term is to
be interpreted according to those principles and practices;


 


(j)                                     any
undertaking, representation, warranty or indemnity by two or more parties
(including where two or more persons are included in the same defined term)
binds them jointly and severally; and


 


(k)                                  a
covenant or agreement on the part of two or more persons binds them jointly and
severally; and


 


(l)                                     a
Default subsists until either remedied to the Lender’s satisfaction or waived
by the Lender in writing.


 


65





















 


20.4                        Business Day


 


(a)                                  Subject
to clause 20.4(a), if the day on which any thing is to be done under this
agreement is not a Business Day, then that thing must be done on the next
Business Day.


 


(b)                                 If a
payment is due on a day which is not a Business Day, the due date for that
payment is the next Business Day in the same calendar month or, if none, the
preceding Business Day, and interest must be adjusted accordingly.


 


20.5                        Lender’s limitation of liability


 


(a)                                The Lender enters into this agreement solely in its capacity as
custodian of the Causeway Australasian Private Debt Opportunities Fund ARSN 125
168 587 (Fund) and it will undertake all
covenants, terms and conditions on its part to be observed or performed solely
in that capacity. No debt, duty, liability or obligation arising under this
agreement will accrue to, or be enforceable against, the Lender in its personal
capacity. The Lender ceases to have any obligations and liabilities under this
agreement if the Lender ceases for any reason to be custodian of the Fund.


 


(b)                               The Lender is not required to satisfy any liability arising under or
in respect of this agreement out of any funds, property or assets other than to
the extent to which it is entitled to and does actually obtain an indemnity
from the responsible entity of the Fund. However, this does not apply to the
extent that the Lender’s right to be indemnified by the responsible entity of
the Fund has been reduced by reason of fraud, negligence or breach by the
Lender in the performance of the Lender’s duties as custodian of the Fund.


 


(c)                                If any party to this agreement other than the Lender does not
recover all money owing to it in under this agreement it may not seek to
recover the shortfall by bringing proceedings against the Lender in its
personal capacity or applying to have the Lender wound up or proving in the
winding up of the Lender.


 


(d)                               The Lender is not obliged to do or refrain from doing anything under
this agreement (including incurring any liability) unless its liability is
limited in the same manner as set out in this clause.


 


20.6                        McLaughlins Financial Services Limited limitation of liability


 


(a)                                  Each
party acknowledges that McLaughlins Financial Services Limited ABN 65 088 647
796 (MFS) enters into this document and each
Security (through its agent Australian Executor Trustees Limited) and incurs
the obligations in them (Obligations)
solely in its capacity as responsible entity of the Causeway Australasian
Private Debt Opportunities Fund ARSN 125 168 587 and in no other capacity.


 


66





















 


(b)                                 A
liability of MFS arising under or in connection with this document and any
Finance Document is limited to and can be enforced against MFS only to the
extent to which it can be satisfied out of any property of the Causeway
Australasian Private Debt Opportunities Fund out of which MFS is actually
indemnified for the liability. Subject to this clause this limitation of MFS’s
liability applies despite any other provision of this document and any Finance
Document and extends to all liabilities and obligations of MFS in any way
connected with any representation, warranty, conduct, omission, agreement or
transaction related to this document and any Finance Document.


 


(c)                                  Subject
to clause 20.6 (d), the other parties to this agreement and any Finance
Document may not sue MFS in any capacity other than as the responsible entity
for the Causeway Australasian Private Debt Opportunities Fund, including seek
the appointment of a receiver (except in relation to property of the Causeway
Australasian Private Debt Opportunities Fund), a liquidator, an administrator
or any similar person to MFS or prove in any liquidation, administration or
arrangement of or affecting MFS (except in relation to property of the Causeway
Australasian Private Debt Opportunities Fund).


 


(d)                                 The
provisions of clauses 20.6(b) and (c) shall not apply:


 


(1)                                  in the case of and to the extent of fraud, gross negligence or
breach of trust on the part of MFS; or


 


(2)                                  to any obligation or liability of MFS to the extent that it is not
satisfied because under a security or by operation of law there is a reduction
in the extent of MFS’s indemnification out of the assets of the Causeway
Australasian Private Debt Opportunities Fund, as a result of MFS’s own fraud,
gross negligence or breach of trust.


 


(e)                                  No
Attorney, agent or Receiver appointed in accordance with this document or any
other Finance Document has authority to act on behalf of MFS in a way which
exposes MFS to any personal liability and no act or omission of any such person
will be considered fraud, negligence or breach of trust of MFS for the purposes
of this clause.


 


(f)                                    Except
to the extent that MFS’s right of indemnity out of the assets of the Causeway
Australasian Private Debt Opportunities Fund is limited, restricted or lost by
reason of fraud, gross negligence or breach of trust, the parties to this
document and any Finance Document waive their rights and release MFS from any
personal liability whatsoever, in respect of any loss or damage:


 


(1)                                  which it may suffer as a result of any:


 


(A)                              breach by MFS of its duties under this
document or any Finance Document; or


 


67





















 


(B)                                non-performance by MFS of the
Obligations; and


 


(2)                                  which cannot be paid or satisfied out of the assets out of which MFS
is entitled to be indemnified in respect of any liability incurred by it as
responsible entity of the Causeway Australasian Private Debt Opportunities
Fund.


 


(g)                                 MFS
is not obliged to do or refrain from doing anything under this Agreement or any
Finance Document (including incur any liability) unless MFS’s liability is
limited in the same manner as set out in this clause.


 


68





















 


Signing page


 


Executed
as an Agreement


 


Lender


 


	
  Signed for and on behalf of Australian Executor Trustees Limited ABN 84 007 869 794 by  its attorney under a Power of Attorney dated in the
  presence of:)



  	
  )

  )

  )

  )

  )

  )

  )

  )

  )

  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  Signature
  of Witness

  	
   

  	
  Signature
  of Attorney

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Print
  name of Witness

  	
   

  	
   

  



 


Borrower
and Obligors


 


	
  Executed by Channell
  Bushman Pty Limited ABN 99 109 821 614 in accordance with
  section 127 of the Corporations Act 2001
  (Cth) by:

  	
  )

  )

  )

  )

  )

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/George
  Apostolidis

  	
   

  	
  /s/Amarjeet
  Kulkarni

  
	
  Signature
  of Director

  	
   

  	
  Signature
  of Director/Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  George
  Apostolidis

  	
   

  	
  Amarjeet
  Kulkarni

  
	
  Print
  name of Director

  	
   

  	
  Print
  name of Director/Secretary

  



 


69

















 


	
  Executed by Bushmans
  Group Pty Limited ABN 90 090 744 022 in accordance with
  section 127 of the Corporations Act 2001 (Cth) by:

  	
  )

  )

  )

  )

  )

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/George
  Apostolidis

  	
   

  	
  /s/Amarjeet
  Kulkarni

  
	
  Signature
  of Director

  	
   

  	
  Signature
  of Director/Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  George
  Apostolidis

  	
   

  	
  Amarjeet
  Kulkarni

  
	
  Print
  name of Director

  	
   

  	
  Print
  name of Director/Secretary

  



 


 


	
  Executed by
  Australian Bushman Tanks Pty Limited ABN 21 058 504 108 in
  accordance with section 127 of the Corporations Act 2001 (Cth) by:

  	
  )

  )

  )

  )

  )

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/George
  Apostolidis

  	
   

  	
  /s/Amarjeet
  Kulkarni

  
	
  Signature
  of Director

  	
   

  	
  Signature
  of Director/Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  George
  Apostolidis

  	
   

  	
  Amarjeet
  Kulkarni

  
	
  Print
  name of Director

  	
   

  	
  Print
  name of Director/Secretary

  



 


 


	
  Executed by Bushmans
  Engineering Pty Limited ABN 49 074 185 461 in accordance with
  section 127 of the Corporations Act 2001 (Cth) by:

  	
  )

  )

  )

  )

  )

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/George
  Apostolidis

  	
   

  	
  /s/Amarjeet
  Kulkarni

  
	
  Signature
  of Director

  	
   

  	
  Signature
  of Director/Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  George
  Apostolidis

  	
   

  	
  Amarjeet
  Kulkarni

  
	
  Print
  name of Director

  	
   

  	
  Print
  name of Director/Secretary

  



 


70

















 


	
  Executed by Polyrib
  Tanks Pty Limited ABN 49 062 942 661 in accordance with
  section 127 of the Corporations Act 2001 (Cth) by:

  	
  )

  )

  )

  )

  )

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/George
  Apostolidis

  	
   

  	
  /s/Amarjeet
  Kulkarni

  
	
  Signature
  of Director

  	
   

  	
  Signature
  of Director/Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  George
  Apostolidis

  	
   

  	
  Amarjeet
  Kulkarni

  
	
  Print
  name of Director

  	
   

  	
  Print
  name of Director/Secretary

  



 


71

















 


Schedule 1        Guarantors


 


	
  Name

  	
   

  	
  Address

  	
   

  	
  ABN/ACN
  (if applicable)

  
	
  Channell
  Bushman Pty Limited

  	
   

  	
  3
  Healey Circuit, Huntingwood, NSW, 2148

  	
   

  	
  ABN
  99 109 821 614

  
	
  Bushmans
  Group Pty Limited

  	
   

  	
  3
  Healey Circuit, Huntingwood, NSW, 2148

  	
   

  	
  ABN
  90 090 744 022

  
	
  Australian
  Bushman Tanks Pty Limited

  	
   

  	
  3
  Healey Circuit, Huntingwood, NSW, 2148

  	
   

  	
  ABN
  21 058 504 108

  
	
  Bushmans
  Engineering Pty Limited

  	
   

  	
  3
  Healey Circuit, Huntingwood, NSW, 2148

  	
   

  	
  ABN
  49 074 185 461

  
	
  Polyrib
  Tanks Pty Limited

  	
   

  	
  3
  Healey Circuit, Huntingwood, NSW, 2148

  	
   

  	
  ABN
  49 062 942 661

  



 


72

















 


Schedule 2        Conditions precedent


 


The
following are conditions precedent for the purposes of clause 2.1:


 


1                                          (officer’s certificate):
an officer’s certificate in the form of Schedule 3 given in respect of the
Borrower, dated no more than 5 Business Days before the date of the first
Advance;


 


2                                          (Finance Documents)
originals of each Finance Document duly executed by all parties to them and,
where applicable:


 


2.1                                 duly stamped or, if not duly stamped, evidence satisfactory to the
Lender that they will be duly stamped; and


 


2.2                                 in registrable form together with all executed documents necessary
to register them;


 


3                                          (Transaction Documents)
certified copies of each of the Transaction Documents (other than the Finance
Documents) duly executed by all parties to them and, where applicable, duly
stamped and registered;


 


4                                          (share mortgages)
share certificates in relation to each Group Member in respect of which share
security is being taken under the Finance Documents including:


 


4.1                                stamped, executed blank share transfers in favour of the Lender or
other relevant transfer documents in relation to all those shares;


 


4.2                                a certified extract of the share register of each relevant company;
and


 


4.3                                if required, shareholder resolutions to amend the constitutions of
the relevant companies;


 


5                                          (insurance)
evidence that the Borrower has complied with clause 9.6(a);


 


6                                          (Financial Statements)
copies of the consolidated Financial Statements of the Group as at the end of
and for the Financial Year ending 31 December 2005 and 31 December 2006;


 


7                                          (Monthly Accounts)
copies of Monthly Accounts for the calendar months ending in 31 July 2007 and
31 August 2007;


 


8                                          (capital expenditure
report) details in a form and substance satisfactory to the Lender
of the progress of the maintenance and expansionary capital to be expended by
the Borrower (including details of the cost to complete and the status of the
Borrower’s expansion into the Sydney and Brisbane markets);


 


9                                          (ownership structure)
details in a form and substance satisfactory to the Lender of the ownership
structure of the Group;


 


73

















 


10                                    (Approved Projections and
Business Plan) certified copies of the Approved Projections and
Business Plan for a period of 2.5 Financial Years commencing 1 July 2007;


 


11                                    (Existing leases, rents etc)
details (satisfactory to the Lender) of any leases and rent agreements that
will remain in place after the date of this agreement;


 


12                                    (due diligence)


 


12.1                          copies of all accounting and other due diligence reports, documents
and other information prepared in connection with the Group; and


 


12.2                          the results of any due diligence undertaken by the Lender in
connection with the Group are acceptable to the Lender;


 


13                                    (no Material Adverse Effect)
no event occurs or exists which, in the opinion of the Lender, has or is likely
to have a Material Adverse Effect;


 


14                                    (fees and expenses)
payment of all fees, costs and expenses of the Lender as required by the
Finance Documents which are due and payable;


 


15                                    (sign-off) legal
sign-off on the Finance Documents by the Lender’s lawyers;


 


16                                    (Security Interests)
evidence that:


 


16.1                          all Security Interests in favour of third parties granted by any
Obligor have been or will be discharged and released on or prior to the date of
the first Advance;


 


16.2                          all third party consents which Lender requires
to the creation of any Security Interest contained in any Finance Document;


 


17                                    (Company Searches)
an ASIC search in respect of each Obligor showing, amongst other things, no
Security Interests over any of its assets (other than those which are to be
released substantially simultaneously with the first Advance being made) and no
appointment of any receiver, liquidator or administrator;


 


18                                    (Corporations Act)
the Lender being satisfied that the requirements of the Corporations Act have
bee complied with so far as they relate to the Transaction Documents; and


 


19                                    (Approvals & Consents)
evidence that all:


 


19.1                          Authorisations required in connection with the business and
operations of any Obligor have been acquired or transferred by or to the
relevant Obligor and that all regulatory consents required in connection with
the Transaction Documents have been obtained;


 


19.2                          Authorisations necessary for any of the transactions contemplated by
the Transaction Documents and their validity and/or enforceability have been obtained
and are in full force and effect.


 


74
















 


Schedule 3      Officer’s Certificate


 


To:                                Australian Executor Trustees
Limited ABN 84 007 869 794 as custodian for the Causeway
Australasian Private Debt Opportunities Fund ARSN 125 168 587 (Lender)


 


I [insert name]
am a [insert
capacity - director/secretary]  of [         ]
(each a Transaction Party).


 


I refer
to the Facility Agreement dated [insert date]
between the Lender, Channell Bushman Pty Limited ABN 99 109 821 614 and each
entity listed in Schedule 1 of that document (the Facility
Agreement).


 


A term
defined in the Facility Agreement has the same meaning when used in this
Certificate.


 


I have
been authorised by each Transaction Party to give this certificate.


 


I
certify as follows:


 


1                                          Relevant documents


 


Attached to this certificate are true, complete and
up-to-date copies of each of the following:


 


1.1                                 constitution: the
constitution of each Transaction Party;


 


1.2                                 [power of attorney: a
duly executed power of attorney granted by each Transaction Party authorising
execution of the Finance Documents to which it is expressed to be a party;] and


 


1.3                                 board minutes: extracts
of minutes of a meeting of the directors of each Transaction Party approving
the execution and performance of its obligations under the Finance Documents to
which it is expressed to be a party [and the granting of the power of attorney
referred to in paragraph (b) above].


 


2                                          No revocation


 


Each document[, power of attorney] and resolution
referred to in paragraph 1 is in full force and effect and has not been
amended, modified or revoked.


 


3                                          Relevant documents


 


The following signatures are the true signatures of
each Authorised Representative of each Transaction Party as at the date of this
certificate:


 


75

















 


	
  Name

  	
   

  	
  Position

  	
   

  	
  Signature

  
	
  [insert name]

  	
   

  	
  [insert details of
  position]

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [insert name]

  	
   

  	
  [insert details of
  position]

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [insert name]

  	
   

  	
  [insert details of
  position]

  	
   

  	
   

  



 


4                                          Relevant documents


 


I certify that:


 


4.1           each, before entering into
any Finance Document to which it is expressed to be a party, has, in connection
with the execution, delivery and performance of each such Finance Document,
complied with the Corporations Act (including Chapter 2E and 2J.3); and


 


4.2           as at the date of execution
of each Finance Document, each Transaction Party is solvent and will not become
insolvent by entering into and performing its obligations under each Finance
Document to which is expressed to be a party.


 


	
  Signed:

  	
   

  	
   

  
	
    [insert name and capacity – director/secretary]

  



 


Date:


 


76

















 


Schedule 4      Drawdown Notice


 


Channell
Bushman Pty Limited ABN 99 109 821 614


 


	
  To:

  	
   

  	
  Australian Executor Trustees Limited ABN 84 007
  869 794 as custodian for the Causeway Australasian
  Private Debt Opportunities Fund ARSN 125 168 587 (Lender)

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
  [        ]

  	
   

  	
   

  
	
   

  	
   

  	
  [        ]

  	
   

  	
   

  
	
  Facsimile:

  	
   

  	
  [        ]

  	
   

  	
  ]

  
	
  Attention:

  	
   

  	
  [        ]

  	
   

  	
  ]

  



 


Facility
Agreement


 


We
refer to the Facility Agreement dated [insert date]
between the Lender, Channell Bushman Pty Limited ABN 99 109 821 614 (Borrower) and each entity listed in schedule 1 of that
document (the Facility Agreement).


 


A term
defined in the Facility Agreement has the same meaning when used in this
Certificate.


 


1                                          The Borrower requests the Lender to
make an Advance under the Facility details of which appear below:


 


1.1                                 Drawdown Date:


 


1.2                                 Tranche:


 


1.3                                 Amount:


 


1.4                                 Purpose:


 


2                                          The representations and warranties
provided by us under the Facility Agreement will be true and not misleading
(whether by omission or otherwise) on the Drawdown Date with reference to the
facts and circumstances then subsisting.


 


3                                          No Default has occurred and is
subsisting or will occur as a result of the Advance being made.


 


4                                          This Advance is being applied for an
Approved Purpose and attached is sufficient evidence to enable the Lender to
determine that the Advance is to be applied for an Approved Purpose.


 


5                                          The Borrower directs the Lender to pay
the net proceeds of the Advance in the following manner:


 


77

















 


5.1                                 $[amount] to [payee – include full
details]; and


 


5.2                                 $[amount] to [payee – include full
details].


 


Dated:   [insert date]


 


 


For and
on behalf of [insert name of Borrower] by its
Authorised Representative


 


 


	
   

  	
   

  	
   

  	
   

  
	
  Name
  (print)

  	
  Signature
  [insert]

  



 


78

















 


Schedule 5      Group Structure Diagram


 


[insert diagram]


 


79

















 


Schedule 6      Borrowing Base Certificate


 


This certificate is given pursuant to clause
9.10(c)(2)(F) of the facility agreement dated [insert
date] between the Lender, Channell Bushman Pty Limited ABN 99 109
821 614 and each entity listed in Schedule 1 of that document (the Facility Agreement).


 


A term defined in the Facility Agreement has the
same meaning when used in this Certificate.


 


The Borrower certifies to the Lender, as at:


 


	
  Current Period:

  	
   

  	
   

  



 


 


	
   

  	
   

  	
  $     Aus

  	
   

  
	
  a.   Inventory

  	
   

  	
  $

  	
   

  
	
  b.   Eligible Inventory

  	
   

  	
  $

  	
   

  
	
  c.   Receivables

  	
   

  	
  $

  	
   

  
	
  d.   Eligible Receivables

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
        Borrowing
  Base (being 0.70*d + 0.50*b)

  	
   

  	
  $

  	
   

  



 


The Borrower also certifies that:


 


(a)                      the representations
and warranties provided by us under the Facility Agreement are true and not
misleading (whether by omission or otherwise) on the date of this Certificate
with reference to the facts and circumstances then subsisting; and


 


(b)                     no Default
has occurred which has not been remedied or waived as at the date of this
Certificate.


 


This Certificate dated                    has
been executed on behalf of the Borrower by:


 


	
   

  	
  Signature:

  	
   

  	
   

  



 


80

















 


Schedule 7      Compliance Certificate


 


Certificate under clause 9.10(d)


 


To accompany the audited and unaudited consolidated
and unconsolidated financial statements for March, June, September and December
each year.


 


	
  To:

  	
   

  	
  Australian Executor Trustees Limited ABN 84 007
  869 794 as custodian for the Causeway Australasian
  Private Debt Opportunities Fund ARSN 125 168 587 (Lender)

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
  [        ]

  	
   

  	
   

  
	
   

  	
   

  	
  [        ]

  	
   

  	
   

  
	
  Facsimile:

  	
   

  	
  [        ]

  	
   

  	
   

  
	
  Attention:

  	
   

  	
  [        ]

  	
   

  	
   

  



 


Facility
Agreement


 


We
refer to the Facility Agreement dated [insert date]
between the Lender, Channell Bushman Pty Limited ABN 99 109 821 614 (Borrower) and each entity listed in schedule 1 of that
document (the Facility Agreement).


 


A term
defined in the Facility Agreement has the same meaning when used in this
Certificate.


 


We certify on behalf of the Borrower in relation to
the period ending [insert date] that:


 


1                                          the Borrower is in compliance with the
financial covenants as set out in clause 9.13 of the Facility Agreement;


 


Debt Service Cover: the ratio of EBITDA to Debt Service:


 


(a)                                      as
at each Testing Date occurring on 31 December, will not be less than 1.00:1;
and


 


(b)                                     for
each other Testing Date, will not be less than 1.20:1.


 


	
  EBITDA

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Debt Service

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Debt Service Cover

  	
   

  	
   

  	
   

  



 


Interest Cover: the ratio of EBITDA to Interest Payable for each Testing Period
ending on a Testing Date will not be less than the ratio specified in the
following table during each applicable period:


 


81

















 


	
  (1)

  	
   

  	
  (2)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Period

  	
   

  	
  Interest Cover 

  Ratio

  	
   

  
	
  From 1 January 2008 to 31 December 2008

  	
   

  	
  2.50:1

  	
   

  
	
  From 1 January 2009 to 31 December 2009

  	
   

  	
  3.00:1

  	
   

  
	
  From 1 January 2010 to the Termination Date

  	
   

  	
  3.25:1

  	
   

  



 


	
  Interest Payable

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EBITDA

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Interest Cover

  	
   

  	
   

  	
   

  



 


Borrowing Base: at all times the aggregate amount of Money Owing will not be
greater than the Borrowing Base.


 


	
  Money Owing

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Borrowing Base

  	
   

  	
  $

  	
   

  	
   

  



 


2                                          attached are full details of the
relevant calculations and any adjustments to the [Monthly Accounts/Annual
Accounts] used to determine the financial covenants set out above;


 


3                                          except as disclosed in paragraph 4
below, no Default has occurred or is subsisting; and


 


4                                          details of the exceptions to paragraph
3 are as follows:


 


 


and we have taken/propose
the following remedial action:


 


 


	
  By:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (Finance Director)

  	
   

  	
  (Director)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (Name)

  	
   

  	
  (Name)

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  
							



 


82

















 


Schedule 8      Accession Document


 


THIS
DEED is made on *.


 


BETWEEN:


 


(1)                                   * (a company incorporated in * [ABN *]) (the New Obligor);


 


(2)                                   * (a company incorporated in * [ABN *]) (the Borrower)
for itself and as agent for the existing Obligors; and


 


(3)                                   * in its capacity as Lender under the Facility Agreement.


 


WHEREAS:


 


(A)                               This deed is entered into in connection with a facility agreement
(the Facility Agreement) between, amongst
others, (1) the Borrower (2) the companies named in the Facility Agreement as
Guarantors (3) [   ] as Lender.


 


(B)                                 This deed has been entered into to record the admission of the New
Obligor as a [Borrower/Guarantor] under the Facility Agreement.


 


IT
IS AGREED as follows:


 


1                                          Definitions


 


Words and expressions defined in the Facility
Agreement have the same meanings when used in this deed.


 


2                                          Admission of New Obligor


 


2.1                                 The New Obligor agrees to become a [Guarantor] under the Facility
Agreement and agrees to be bound by the terms of the Facility Agreement as a
[Guarantor]; and


 


2.2                                 The New Obligor confirms that its address details for notices in
relation to clause [              ]
(Notices) are as follows:


 


	
  Address:

  	
  *

  	
   

  
	
   

  	
   

  	
   

  
	
  Facsimile:

  	
  *

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention
  of:

  	
  *

  	
   

  



 


2.3                                 The parties to this deed other than the New Obligor confirm their
acceptance of the New Obligor as a [Guarantor] for the purpose of the Facility
Agreement.


 


83

















 


3                                          Representations


 


The New Obligor makes each representation and warranty
made by an Obligor under the Facility Agreement and acknowledges that the
Lender enters into this Accession Document in full reliance on those
representations and warranties.


 


4                                          Law and Jurisdiction


 


This deed (and any dispute, controversy, proceedings
or claim of whatever nature arising out of or in any way relating to this deed)
will be governed by and construed in accordance with New South Wales law and,
for the benefit of the Lender, the New Obligor irrevocably submits to the
jurisdiction of the courts in New South Wales in the same terms as set out in clause
[19.2] of the Facility Agreement.


 


This
deed has been executed on the date first above written.


 


84

















 


Signatories
to Accession Document


 


	
  The Common Seal of [NEW OBLIGOR] ABN [Insert ABN number] was affixed in
  the presence of:

  	
  )

  )

  )

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signature
  of Director

  	
   

  	
  Signature
  of Director/Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Print
  name of Director

  	
   

  	
  Print
  name of Director/Secretary

  



 


 


	
  The Borrower

  	
   

  	
   

  
	
  [name]

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  The Lender

  	
   

  	
   

  
	
  [name]

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  



 


85

















 


 


	
   

  	
  Sydney

  Level
  16

  321
  Kent Street

  Sydney  NSW 
  2000

  PO
  Box Q1164 QVB Post Office

  Sydney  NSW 
  1230

  DX
  282 Sydney

  Ph:  02 9373 3555

  Fax:  02 9373 3599

  
	
   

  	
   

  
	
   

  	
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