AMENDMENT AND RESTATEMENT DEED
National Australia Bank Limited
and S&W SEED COMPANY AUSTRALIA PTY LTD ACN 061 114 814
DATED 2 November 2023
Amendment and Restatement Deed (S&W Seed Company).docx
Table of Contents
DEFINITIONS ANDINTERPRETATION ...................................................................: 2
THIS DEED is dated the date shown on the front page and is made between:
NATIONAL AUSTRALIA BANK LIMITED ABN 12 004 044 937 of 395 Bourke Street, Melbourne,
Victoria 3000 (NAB); -
Each person listed _as a borrower in the Schedule (Borrower and together the Borrowers);
_Each person (if any) listed as a cross-guarantor in the Schedule (Cross-Guarantor and together the
Cross-Guarantors); and
Each person (if any) listed as a security provider in the Schedule (Security Provider and together the
Security Providers).
This Deed remains available for acceptance until 30 January 2024 at which time it will lapse.
BACKGROUND:
IT IS AGREED as follows:
Words which have a defined meaning in the Original Agreement have the same meaning in this document unless otherwise defined.
Effective Date means the date NAB gives the notice contemplated in clause 2.1 (Conditions precedent).
Obligor means each Borrower, Cross-Guarantor and Security Provider.
Original Agreement means the facility agreement between NAB and some or all of the Obligors dated, or most recently amended or restated on, 29 June 2023.
Clause 1.4 (Interpretation) of the General Conditions of the Original Agreement applies to this document as if set out in full in this document.
To the extent permitted by law, this document prevails to the extent it is inconsistent with any law.
The parties enter into this document in consideration of, among other things, the mutual promises contained in this document.
2
This document is a Finance Document for the purposes of the Original Agreement.
No party enters into this document as agent for an undisclosed principal, as a partner of any partnership, trustee of any trust, responsible entity of any registered scheme or otherwise for the benefit of any other person except as expressly described in this document.
The amendments proposed to the Original Agreement referred to in clause 3 (Amendment and restatement are of no force and effect until NAB has notified the Borrowers in writing that each of the following has been received by NAB or otherwise complied with in form and substance satisfactory to NAB:
Unless otherwise required by NAB, each document specified in respect of an Obligor in clause
2.1 (Conditions precedent must be an original. If NAB requires a certified copy of a document, the copy must be certified by a director or secretary of that Obligor as true and complete as at a date no earlier than 5 Business Days before the date of this document.
With effect on and from the Effective Date, the Original Agreement is amended and restated in the form set out in the annexure to this document.
On the date of this document and on the Effective Date, each representation and warranty contained in the Original Agreement is deemed to be repeated by each Obligor for the benefit of NAB with reference to the facts and circumstances subsisting as at the date of this document and the Effective Date respectively.
3
Clause 31 (Communications and Notices) of the General Conditions of the Original Agreement . applies to this document as if set out in full in this document.
This document may be executed in any number of counterparts and, if so, the counterparts taken together constitute one and the same instrument.
This document is governed by the laws of Victoria. Any court cases involving this document can be held in the courts of any state or territory of Australia with jurisdiction to consider matters related to this document. Each party irrevocably and unconditionally submits to the non exclusive jurisdiction of the courts exercising jurisdiction there.
4
SCHEDULE1
BORROWER(S)
S&W SEED COMPANY AUSTRALIA PTY LTD ACN 061 114 814
CROSS-GUARANTOR(S) (IF ANY)
S&W SEED COMPANY AUSTRALIA PTY LTD ACN 061 114 814 S&W HOLDINGS AUSTRALIA PTY LTD ACN 162 715 326
SECURITY PROVIDER(S) (IF ANY)
S&W SEED COMPANY AUSTRALIA PTY LTD ACN 061 114 814 S&W HOLDINGS AUSTRALIA PTY LTD ACN 162 715 326
5
EXECUTED AS A DEED
6
ANNEXURE
AMENDED AND RESTATED ORIGINAL AGREEMENT
7
FINANCE AGREEMENT
National Australia Bank Limited
and S&W SEED COMPANY AUSTRALIA PTY LTD ACN 061114 814
DATED 2 November 2023
Amendment and Restatement Deed (S&W Seed Company).docx
© National Australia Bank Limited (ABN 12 004 044 937), Melbourne, Australia
This Finance Agreement is dated as shown on the front page and is made between
NATIONAL AUSTRALIA BANK LIMITED ABN 12 004 044 937 of 395 Bourke Street, Melbourne, Victoria 3000 (NAB) and each person listed in the Key Information.
FACILITIES IN THIS FINANCE AGREEMENT
Facility 1: | Multi-Option Facility | $3,000,000 |
Facility 1.1: | NAB Corporate Markets Loan | $800,000 |
Facility 1..2: | Revolving Lease Limit | $2,200,000 |
Facility 2: | Multi-Option Facility | $42,000,000 |
Facility 2.1: | Borrowing Base Trade Refinance Facility | $36,000,000 |
Facility 2.2: | Farm Management Account Overdraft Facility | $6,000,000 |
Facility 3: | NAB Corporate Markets Loan | $3,500,000 |
Facility 4: | NAB Corporate and Purchasing Card | $180,000 |
SIGNATURES
[Intentionally deleted]
9
FACILITY DETAILS
FACILITY1: MULTI-OPTION FACILITY
FACILITY: | MULTI-OPTION FACILITY |
Borrower: | S&W SEED COMPANY AUSTRALIA PTY LTD ACN 061114 81.4 |
Multi-Option Facility Limit: | $3,000,000. Drawings in excess of the Multi-Option Facility Limit may only be made with NAB's prior consent. |
Purpose: |
To fund the purchase of plant and equipment. |
Facilities subject to the Multi-Option Facility: |
The Multi-Option Facility may be utilised in relation to any one or more of the following: |
| FACILITY 1.1: NAB CORPORATE MARKETS LOAN |
| FACILITY 1.2: REVOLVING LEASING LIMIT |
| Please refer to the Details for each Facility specified above. |
Expiry Date |
31 March 2024 |
Facility Fee |
0% |
Other Conditions: | The General Terms and the Multi-Option Facility Specific Conditions apply to this Facility. |
10
FACILITY: | NAB CORPORATE MARKETS LOAN | |
Borrower: |
S&W SEED COMPANY AUSTRALIA PTY LTD ACN 061 114 814 | |
Facility Limit: |
Facility forms part of the Multi-Option Facility. The initial Facility Limit will be $800,000. Drawings in excess of the Facility Limit may only be made with NAB's prior consent. | |
Maximum Facility Limit: |
$800,000 | |
Loan Account: |
085005 363618301 | |
Purpose: |
To fund the purchase of 2x processing plants for seed processing facility located at Keith. Financial accommodation provided under this facility is, or must be, applied for approved business purposes or investment purposes. | |
12 month Facility: |
No | |
Expiry Date: |
31 March 2024 | |
Review Date: | NAB may review pricing in accordance with clause 14 (Review) of the General Terms. | |
Pricing Period: |
3 months.
The Borrower can determine the Pricing Period which may be for a period of 1, 2, 3 or 6 months or any other period that NAB at its discretion may approve. If the Pricing Period is, or becomes, shorter than 3 months, a Reset Margin will apply. | |
Corporate Markets Loan Component Limits: |
Floating Amount: |
$800 000 |
Fixed Amount: | To be advised by NAB if requested by the Borrower | |
Cap Amount: |
To be advised by NAB, if requested by the Borrower | |
Range Amount: |
To be advised by NAB, if requested by the Borrower | |
The Corporate Markets Loan Component Limits apply where the Borrower requests to be able to make a Drawing under one or more Corporate Markets Loan Components within the Facility Limit and the term of the Facility. For more information see the NAB Corporate Markets Loan Specific Conditions. | ||
Interest Rate: |
The interest rate applicable to the Facility for a Pricing Period is the weighted average of the interest rates applicable to each of the Corporate Markets Loan Components for that Pricing Period. For more information see the NAB Corporate Markets Loan Specific Conditions. | |
| Floating Rate: IBBSY plus the Funding Margin plus the Drawn Margin I |
11
FACILITY 1.1: NAB CORPORATE MARKETS LOAN
12
|
|
|
Funding 0%p.a. Margin: Drawn 4%p.a. Margin: |
|
Fixed Rate: | As advised by NAB in writing ("If applicable to this Facility) See the NAB Corporate Markets Loan Specific Conditions. |
| ||
Cap Rate: | As advised by NAB in writing ("If applicable to this Facility) See the NAB Corporate Markets Loan Specific Conditions. |
| ||
Floor Rate: | As advised by NAB in writing ("If applicable to this Facility) See the NAB Corporate Markets Loan Specific Conditions. |
| ||
Cap/Range Rate Premium: | $0 |
| ||
Facility Fee: | 1.5% p.a. | |||
Undrawn Fee: • | 0.5% p.a. | |||
Reset Fee: | $0 Payable on the first Banking Day of each Pricing Period (other than the first Pricing Period). | |||
Reset Margin: | 0.10% p.a. (indicative) The Reset Margin is applicable if the Pricing Period is, or becomes, shorter than 3 months. The Reset Margin is subject to change by NAB at any time. | |||
Review Fee: | $0 | |||
Amortisation: |
The Facility is non-amortising. | |||
Nominated Account: |
085005 857726783 For the purposes of debiting and crediting amounts in relation to this Facility under this document. | |||
Other Conditions: | The General Terms and NAB Corporate Markets Loan Specific Conditions apply to this Facility. | |||
Default Interest Rate: | Calculated at NAB's Base Indicator Rate plus the Drawn Margin plus a default margin of 1% P.a.. |
13
FACILITY 1.2: REVOLVING LEASE LIMIT
FACILITY: | REVOLVING LEASE LIMIT |
Borrower: | S&W SEED COMPANY AUSTRALIA PTY LTD ACN 061 114 814 |
Initial Facility Limit: | $2,200,000 |
Maximum Facility Limit: |
$3,000,000 |
Expiry Date: | 31 March 2024 |
Other Conditions: | Master Asset Finance Agreement
Notwithstanding any other provision of this document, no fee, charge or commission received or to be received by NAB under this document or any other Finance Document is attributable to the establishment or maintenance of this Facility. |
14
FACILITY: | MULTI-OPTION FACILITY |
Borrower: |
S&W SEED COMPANY AUSTRALIA PTY LTD ACN 061114 814 |
Multi-Option Facility Limit: | $42,000,000. Drawings in excess of the Multi-Option Facility Limit may only be made with NAB's prior consent. |
Purpose: |
To cover financial requirements for the day to day operations of the Borrower. |
Facilities subject to the Multi-Option Facility: |
The Multi-Option Facility may be utilised in relation to any one or more of the following: |
| Facility 2.1 : BORROWING BASE TRADE REFINANCE FACILITY |
| Facility 2.2: FARM MANAGEMENT OVERDRAFT ACCOUNT |
| Please refer to the Details for each Facility specified above. |
Expiry Date |
31 March 2024 |
Facility Fee |
0% |
Other Conditions: | The General Terms and the Multi-Option Facility Specific Conditions apply to this Facility. |
FACILITY 2: MULTI-OPTION FACILITY
15
FACILITY: | BORROWING BASE TRADE REFINANCE FACILITY |
Borrower: |
S&W SEED COMPANY AUSTRALIA PTY LTD ACN 061 114 814 |
Facility Limit: |
Facility forms part of the Multi-Option Facility. The initial Facility Limit will be $36,000,000. Drawings in excess of the Facility Limit may only be made with NAB's prior consent. |
Maximum Facility . Limit: |
$42,000,000 |
Purpose: |
To provide a revolving facility for trade refinance requirements in Australian dollars on fixed term periods of up to 30 days. Credit or financial accommodation provided under this Facility is, or must be, applied for business purposes. |
Expiry Date: |
31 March 2025 |
Review Date: | NAB may review pricing in accordance with clause 14 (Review') of the General Terms. |
Term of Drawing: | The Borrower can determine the term of each Drawing which may be for a period of up to 180 days or any other period that NAB at its discretion may approve. |
Interest Rate (foreign currency): |
Not Applicable |
Interest Rate (Dollar}: |
The interest rate for a Drawing denominated in Dollars is fixed at the time of that Drawing and will be: Floating Rate plus a customer margin of 3% p.a.. |
Floating Rate: | BBSY |
Payment of interest: |
Interest is calculated daily. It is payable in arrears on the last day of the term of a Drawing and if the last day of the term of a Drawing is not a Banking Day, on the last Banking Day of the term. Interest is also payable on the Termination Date. |
Facility Fee: | 1.5%p.a. Calculated on the Facility Limit and payable in advance on a 6 monthly basis from the date of establishment of the Facility. |
Other Fees and Charges: | NAB's standard fees and charges from time to time will apply to all transactions under this Facility. Refer to the Fees Guide. |
Nominated Account: |
To be advised. For the purposes of debiting and crediting amounts in relation to this Facility under this document. |
FACILITY 2.1: BORROWING BASE TRADE REFINANCE FACILITY
16
Other Conditions: |
The General Terms, the Global Trade Finance Specific Conditions and the terms and conditions set out in any additional documents relating to Trade Finance required by NAB's normal practice apply to this Facility. Borrowing Base Annexure to the Global Trade Finance Specific Conditions applies to this Facility. |
Default Interest Rate: | Calculated at NAB's Base Indicator Rate plus a customer margin of 3% p.a. plus a default margin of 1% p.a.. |
FACILITY: | FARM MANAGEMENT ACCOUNT OVERDRAFT FACILITY Key aspects of this Facility include the following:
• The Facility is fluctuating in nature and it is expected that the linked transaction account will regularly fluctuate between debit and credit • The Facility can be unilaterally terminated at any time on demand by NAB. • NAB can unilaterally reduce the Facility Limit at any time. balances. To help ensure this takes place, NAB may require that all, or an agreed part, of the Borrower's gross business income is credited to its linked transaction account. These aspects are essential elements of the Facility and allow NAB to, among other things, manage the risk and cost of providing this Facility. |
Borrower: |
S&W SEED COMPANY AUSTRALIA PTY LTD ACN 061 114 814 |
Initial Facility Limit |
$6 000.000 |
Maximum Facility Limit: |
$6,000,000. Drawings in excess of the Facility Limit may only be made with NAB's prior consent. |
Loan Account: |
085005 857726783 |
Purpose: | To cover financial requirements for the day to day operations of the Borrower. Credit provided under this Facility is, or must be, applied for business purposes. |
Expiry Date: , |
31 March 2024 |
Review Date: | NAB may review pricing in accordance with clause 14 (Review) of the General Terms. |
Interest Rate: | NAB's Farm Prime Indicator Rate plus a customer margin of 0% P.a.. |
Service Fee: |
Not applicable |
Facility Fee: | $0 Payable annually each year. |
Review Fee: | $0 Payable on each review of this Facility. |
Nominated Account: |
To be advised, For the purposes of debiting and crediting amounts in relation to this Facility under this document. |
FACILITY 2 2· FARM MANAGEMENT ACCOUNT OVERDRAFT FACILITY
Other Conditions: | The General Terms and Overdraft Facility Specific Conditions apply to this Facility. |
Default Interest Rate: | Calculated at NAB's Farm Prime Indicator Rate plus a customer margin of 0% p.a. plus a default margin of 1% p.a.. |
FACILITY: | NAB CORPORATE MARKETS LOAN | ||||
Borrower: |
S&W SEED COMPANY AUSTRALIA PTY LTD ACN 061 114 814 | ||||
Facility Limit: |
$3,500,000 | ||||
Loan Account: |
To be advised. | ||||
Purpose: |
To assist with the purchase of Pasture Genetics Pty Ltd. Financial accommodation provided under this Facility is, or must be, applied for approved business purposes or investment purposes. | ||||
Last Date for Initial Drawdown: |
17 April 2024 | ||||
12 month Facility: |
No | ||||
Expiry Date: |
29 Mav2026 | ||||
Review Date: • | NAB may review pricing in accordance with clause 14 (Revie of the General Terms. | ||||
Pricing Period: |
1 month.
The Borrower can determine the Pricing Period which may be for a period of 1, 2, 3 or 6 months or any other period that NAB at its discretion may approve. If the Pricing Period is, or becomes, shorter than 3 months, a Reset Margin will apply. | ||||
Corporate Markets Loan Component Limits: |
Floating Amount: |
$3 500,000 | |||
Fixed Amount: | To be advised by NAB, if requested by the Borrower | ||||
Cao Amount: |
To be advised by NAB if requested by the Borrower | ||||
Range Amount: |
To be advised by NAB, if requested by the Borrower | ||||
The Corporate Markets Loan Component Limits apply where the Borrower requests to be able to make a Drawing under one or more Corporate Markets Loan Components within the Facility Limit and the term of the Facility. For more information see the NAB Corporate Markets Loan Specific Conditions. | |||||
Interest Rate: |
The interest rate applicable to the Facility for a Pricing Period is the weighted average of the interest rates applicable to each of the Corporate Markets Loan Components for that Pricing Period. For more information see the NAB Corporate Markets Loan Specific Conditions. | ||||
|
|
Floating Rate: | BBSY PIUS the Funding Margin PIUS the Drawn Margin. |
| |
|
Funding 0%p.a. Marnin: |
|
19
FACILITY 3: NAB CORPORATE MARKETS LOAN
20
|
|
| Drawn 4%p.a. Marnin: |
|
Fixed Rate: | As advised by NAB in writing (if applicable to this Facility) See the NAB Corporate Markets Loan Specific Conditions. |
| ||
Cap Rate: | As advised by NAB in writing (if applicable to this Facility) See the NAB Corporate Markets Loc;1n Specific Conditions. |
| ||
Floor Rate: | As advised by NAB in writing (if applicable to this Facility) See the NAB Corporate Markets Loan Specific Conditions. |
| ||
Cap/Range Rate Premium: | $0 |
| ||
Facility Fee: | 1. p.a. | |||
Undrawn Fee: | 0% p.a. | |||
Reset Fee: | $0 Payable on the first Banking Day of each Pricing Period (other than the first Pricing Period). | |||
Reset Margin: | 0.10% p.a. (indicative) The Reset Margin is applicable if the Pricing Period is, or becomes, shorter than 3 months. The Reset Margin is subject to change by NAB at any time. | |||
Review Fee: | $0 | |||
Amortisation: | The Facility Limit will automatically reduce by $500,000 per year, commencing 31 May 2024. | |||
Nominated Account: |
To be advised. For the purposes of debiting and crediting amounts in relation to this Facility under this document. | |||
Other Conditions: | The General Terms and NAB Corporate Markets Loan Specific Conditions apply to this Facility. | |||
Default Interest Rate: |
Calculated at NAB's Base Indicator Rate plus the Drawn Margin plus a default margin of 1% p.a. |
21
OTHER FACILITIES
Following are details of some Other Facilities provided by NAB to a Borrower. The terms and conditions of each Other Facility are set out in the Transactions Specific Document, if any, for the Other Facility, each other document referred to in the "Other Conditions" section of the Details and, subject to clause
1.5 (Inconsistency), this document.
FACILITY 4: NAB CORPORATE AND PURCHASING CARD
FACILITY: | NAB CORPORATE AND PURCHASING CARD |
Borrower: | S&W SEED COMPANY AUSTRALIA PTY LTD ACN 061 114 814 |
Facility Limit: | $180,000 |
Expiry Date: |
|
Other Conditions: | NAB Corporate and Purchasing 6ard Facility Terms and Conditions and NAB Corporate and Purchasing Card Facility - Letter of Offer |
The parties agree that if any of the following Facilities are specified in the Details, the Expiry Date for that Facility can be extended at the option of NAB:
OPTION TO EXTEND CERTAIN FACILITIES
22
(each a 12 Month Facility).
The option to extend a 12 Month Facility subject to the terms of this document will only be available for four consecutive annual periods from the initial Expiry Date, such that the final Expiry Date cannot be a date more than 5 years from the initial Expiry Date.
The Borrower repeats the representations and warranties that are made, or taken to be repeated, in accordance with this document (as varied from time to time) as at each Expiry Date (other than the final Expiry Date for a 12 Month Facility) and further represents and warrants to NAB that no Default subsists.
If the Expiry Date does not fall on a Business Day, it will be the next Business Day. The above provisions prevail to the extent of any inconsistency.
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KEY INFORMATION
Item 1 {Obligors and Group)
S&W SEED COMPANY AUSTRALIA PTY LTD ACN 061 114 814
S&W SEED COMPANY AUSTRALIA PTY LTD ACN 061 114 814 S&W HOLDINGS AUSTRALIA PTY LTD ACN 162 715 326
S&W SEED COMPANY AUSTRALIA PTY LTD ACN 061 114 814 S&W HOLDINGS AUSTRALIA PTY LTD ACN 162 715 326
Not applicable
Item 2 {Security Documents)
Name of Security Provider{s) | Security Documents to be Provided | Facilities secured |
S&W SEED COMPANY AUSTRALIA PTY LTD ACN 061114 814 |
First registered mortgage over property situated at 4 & 5 Stirling Road, Keith SA 5267 more particularly described in Certificates of Title Volume 6186 Folios 122 and 123. |
FACILITY 1.1: NAB CORPORATE MARKETS LOAN
Facility 2.1 : BORROWING BASE TRADE REFINANCE FACILITY |
|
| FACILITY 2.2: FARM MANAGEMENT ACCOUNT OVERDRAFT FACILITY |
|
| FACILITY 3: NAB CORPORATE MARKETS LOAN |
|
| Each Hedging Agreement |
24
S&W SEED COMPANY AUSTRALIA PTY LTD ACN 061114 814 | Guarantee and Indemnity for $15,000,000 (Australian Dollars) from S&W Seed Company. | FACILITY 1.1: NAB CORPORATE MARKETS LOAN
Facility 2.1 : BORROWING BASE TRADE REFINANCE FACILITY |
|
| FACILITY 2.2: FARM MANAGEMENT ACCOUNT OVERDRAFT FACILITY |
|
| FACILITY 3: NAB CORPORATE MARKETS LOAN |
S&W SEED COMPANY AUSTRALIA PTY LTD ACN 061 114 814 |
Right of Entry from Southaust Holdings Pty Ltd ACN 067 860 806 c/o Moore Stephens (SA) Pty Ltd of Level 2, 180 Flinders St Adelaide SA 5000 over 14- 16 Hakkinen Road, WINGFIELD SA5013 CT 5681/62 |
FACILITY 1.1: NAB CORPORATE MARKETS LOAN
Facility 2.1 : BORROWING BASE TRADE REFINANCE FACILITY
FACILITY 2.2: FARM MANAGEMENT ACCOUNT OVERDRAFT FACILITY |
|
| FACILITY 3: NAB CORPORATE MARKETS LOAN |
|
| Each Hedging Agreement |
S&W SEED COMPANY AUSTRALIA PTY LTD ACN 061 114 814 • |
Right of Entry from Firstly Northland (SA) Pty Ltd ACN 080 423 365 of 14-16 Hakkinen Road Wingfield SA 5013 & Secondly from Robert Damin & Ann Elizabeth Damin all c/o 14- 16 Hakkinen Road Wingfield CT 5976/648, 6020/269 & 6020/270 (Penfield) |
FACILITY 1.1: NAB CORPORATE MARKETS LOAN Facility 2.1 : BORROWING BASE TRADE REFINANCE FACILITY
FACILITY 2.2: FARM MANAGEMENT ACCOUNT OVERDRAFT FACILITY |
|
| FACILITY3: NAB CORPORATE MARKETS LOAN |
|
| Each Hedging Agreement |
S&W SEED COMPANY AUSTRALIA PTY LTD ACN 061 114 814 | First priority General Security Agreement over all present and after-acquired property | FACILITY 1.1: NAB CORPORATE MARKETS LOAN |
|
| Facility 2.1 : BORROWING BASE TRADE REFINANCE FACILITY |
|
| FACILITY 2.2: FARM MANAGEMENT ACCOUNT OVERDRAFT FACILITY |
|
| FACILITY 3: NAB CORPORATE MARKETS LOAN |
|
| Each Hedging Agreement |
S&W HOLDINGS AUSTRALIA PTYLTDACN 162715326 |
First priority General Security Agreement over all present and after-acquired property |
FACILITY 1.1: NAB CORPORATE MARKETS LOAN |
|
| Facility 2.1 : BORROWING BASE TRADE REFINANCE FACILITY |
|
| FACILITY 2.2: FARM MANAGEMENT ACCOUNT OVERDRAFT FACILITY |
|
| FACILITY 3: NAB CORPORATE MARKETS LOAN |
|
| Each Hedging Agreement |
Item 3 (Material Documents)
Not applicable
Item 4 (Specified Documents and other conditions precedent) (clause 3.2(e) (Conditions Precedent))
Specified Documents
Not applicable
Other Conditions Precedent
Not applicable
Item 5 (Mandatory Prepayment) (clause 5.2(b) (Prepayment))
Not applicable
Item 6 (Other Representations and Warranties) (clause 8.1(aa) (Representations and Warranties))
Not applicable
Item 7 (Financial Statements and other documents) (clause 9(o) (Financial Statements and other documents to be delivered))
Type of report | Entity | .Audited/ Unaudited | Consolidated/ Unconsolidated | Due date for delivery to NAB |
Annual Financial Statements |
S&W HOLDINGS ·AUSTRALIA PTYLTDACN 162 715 326 |
Unaudited |
Consolidated |
30 November 2023 and every 12 months thereafter |
Statutory payments certificate (evidence satisfactory to NAB that all statutory payments have been met when due) |
The Group |
|
|
15 November 2023 and every 3 months thereafter |
Management accounts (Including balance sheet, profit and loss statement and cash flow statement). Commen1ary to be provided on variances to budget greater than 15% to key line items. |
The Group |
|
|
15 November 2023 and every 3 months thereafter |
Item 8 (Other Under1akings) (clause 9(bb) (other undertakings or conditions subsequent))
The Group is to maintain a Net Entity Position of no more than USD $18,500,000.
"Net Related Entity Position" means current Related Entity assets plus non current Related Entity assets less current Related Entity liabilities less non current Related Entity liabilities.
Any drawdowns for Facility 1.1 ($350,000 CML) are to be only against presentation of invoices.
Item 9 (Financial Covenants) (clause 10.1 (Financial Covenants))
The Obligors must maintain the financial covenants set out below at all times.
The financial covenants will:
NAB may test the financial covenants at any time.
Financial Covenants
Period | ICR | |
1 July 2023 |
30 June 2024 |
1.5:1 |
1 July 2024 |
onwards |
2:1 |
The Interest Cover Ratio for Other, for each period set out in the table below, must not be less than the ratio set out opposite that period in the table below.
Definitions
For the purposes of these financial covenants, the following definitions and the definitions in the Property Conditions apply in addition to those set out in clause 1.3 (Definitions).
Calculation Date means the last day of each 12 month period until the Termination Date, commencing on the first Calculation Date of 30 June 2024.
Calculation Period means each period of twelve months ending on a Calculation Date, unless otherwise agreed in writing by NAB.
EBITDA means earnings before:
Interest Cover Ratio or ICR means, for a Calculation Period, the ratio of EBITDA over that period to Interest Expense for that period.
Interest Expense means, in respect of a period, the aggregate amount of all interest and amounts in the nature of interest or of similar effect to interest paid or payable for that period, including:
27
28
It includes interest on any shareholder loans unless capitalised or subordinated on terms acceptable to
NAB.
29
Item 10
Not applicable
30
(Hedging) (clause 10.3 (Hedging))
31
Item 11 (Enforcement proceedings- Threshold Amount) (clause 11.1(g) (Enforcement proceedings))
$250,000
32
Item 12
Not applicable
Item 13
33
(Other Events of Default) (clause 11.1(s) (Other)) .
(Fees) (clause 17 (Fees))
34
Bank Fees | ||
Application/Establishment Fee: | payable on execution of this document |
$750.00 |
Company Search Fee (x3): | payable on execution of this document |
$120.00 |
PPSR Search Fee (x3): | payable on execution of this document |
$60.00 |
Government Fees | ||
SA Title Search Fee (x2): | payable on execution of this document |
$77.32 |
Total Estimated Fees $1,007.32 |
35
Item 14
Not applicable
Item 15
36
(Review Events) (clauses 14.4 (ReviewEV8llt, and 14.5 (ReviewEventConsequenceGJ)
(Communications) (clause 31 (Communications and Notices))
37
Details for service of communications to NAB:
38
Name of Bank: Address:
39
National Australia Bank Limited
Level 6, 22 King William Street, Adelaide SA 5000
40
Attention: Ben Vanderkop
Details for service of communications to the Obligor(s): Name of Obligor: All Obligors
41
Address:
Attention: Email: Item 16
Victoria
Item 17
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14-16 Hakkinen Road
Wingfield SA 5013 The Secretary
(Governing Law Jurisdiction) (clause 37) (Governing Law & Jurisdiction))
{Trust) and {Trust Documents)
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Not Applicable
Item 18 (Partnership) and (Partnership Documents)
Not applicable
Item 19 (Scheme), (Custodian), (Custody Agreement) and {Scheme Documents)
Not applicable
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Item 20
Not applicable
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(Other)
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SPECIFIC FACILITY TERMS
GLOBAL TRADE FINANCESPECIFIC CONDITIONS
FOREIGN CURRENCY WARNING NOTICE
This important notice should be read and understood before the Borrower decides to enter into a Facility or transaction in a foreign currency.
This notice is intended to provide the Borrower with a general warning of the risks that can arise from adverse exchange rate movements when transacting in a foreign currency, and to advise the Borrower that other risks also exist.
The Borrower's liability in Dollars will increase, possibly very substantially, if there is an adverse movement in either:
Another risk that may also exist is the potential for adverse movements in the interest rate that applies to the foreign currency Facility or transaction.
The Borrower should also be aware that in some circumstances mechanisms may be available for limiting these risks. Such mechanisms may include products ranging from forward FX contracts (FECs) and fixed rate loans to more complex options and derivatives. A solution can be tailored to the Borrower's specific business needs.
For more information about managing risks associated with international trade, go to the "Business" tab on our website www.nab.com.au and click on > International trade.
For more information regarding Foreign Exchange risk please telephone a Specialist on 132265 (7am - 7pm EST).
The Borrower should seek independent professional advice before entering into a Facility or transaction in a foreign currency. In particular, advice should be sought as to the suitability of a foreign currency Facility or transaction for the Borrower's purposes and as to risk management strategies available for such Facilities or transactions.
Important information about Renminbi Settlement Services
Renminbi ("RMB"), the lawful currency in the People's Republic of China, is not yet fully convertible and is subject to substantial exchange rate risk. For more information about the risks associated with RMB, please contact a Specialist on 132265 (7am - 7pm EST).
This clause 1 (Foreign Currency Overdraft Facilities) applies to any Foreign Currency Overdraft Facility. •
The following additional conditions precedent apply in relation to any Drawing:
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Any amount paid or repaid to the credit of the Facility may be redrawn subject to the terms of this document.
NAB may require the Borrower to repay all or part of the Balance Owing at any time. The Borrower must repay all of the Balance Owing on demand.
The Borrower may prepay the whole or any part of the Balance Owing at any time.
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The following additional conditions precedent apply in relation to any Utilization (including the initial Utilization): •
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Where any Bills are drawn on NAB in connection with a Letter of Credit, NAB will accept such Bills on presentation and make payments in accordance with the terms of the Bill. The Borrower must pay and indemnify NAB for doing so in accordance with clause 2.6 ( The Borrower's undertaking to pay) of these Global Trade Finance Specific Conditions.
The Borrower must:
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NAB may, at its reasonable discretion, direct a Letter of Credit established under a Facility to its correspondent bank for negotiation or other action. If NAB does this, such correspondent bank may pay NAB a commission for each Letter of Credit directed to them.
11.2 (Consequences of Default) of the General Terms and where money will be held in a deposit account in accordance with clause 2.11(c), the Borrower must also provide NAB with an appropriate Deposit Letter in respect of all such moneys to be held by NAB in such a deposit account.
If any documents or any goods in relation to a Letter of Credit are:
before the Borrower has fully paid and discharged its obligations to NAB or its correspondent banks in relation to the Letter of Credit, the Borrower agrees that:
and hold those funds until they are disbursed in accordance with clause 2.11(c)(ii) and/or (iii);
The Borrower does not pay interest charges on any Utilisation that is an issue of a Letter of Credit, provided that it is repaid in accordance with this document. Interest charges will apply where that Letter of Credit is refinanced under your Facility.
This clause 3 (Other Drawings) applies to all Drawings under a Facility which is not covered by clause 1 (Foreign Currency Overdraft Facilities) or clause 2 (Letters of Credit) including a Drawing under a Trade Refinance Facility, Overseas Bills Purchased Facility or Overseas Currency Loan Facility. •
The following additional conditions precedent apply in relation to any Drawing:
The Borrower may prepay all or part of the Balance Owing in respect of:
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and if the last day of that Interest Period or term of that Drawing (as the case may be) is not a Banking Day, accrued interest is payable on the last Banking Day of that Interest Period or term; and
. .
the first Banking Day of that term.
in each case adjusted where necessary so that:
All payments of principal and interest in respect of any Drawing must be made:
and, upon payment, the Borrower must notify NAB that such payment has been made.
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Unless otherwise agreed:
This clause 6 (Foreign Currency Facilities or Transactions) applies to any Facility made available in or which involves foreign currencies.
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The Borrower acknowledges and agrees that NAB does not, and the Borrower must not rely on NAB to, manage, supervise or advise the Borrower in relation to the Borrower's foreign currency exposure.
If a Facility is made available or involves a foreign currency and there is a change in the exchange rate applicable between that foreign currency and Dollars which has the effect of causing the Australian Dollar Equivalent of the Balance Owing to exceed the Australian Dollar Equivalent of the Facility Limit, NAB may require the Borrower to either:
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To the extent not otherwise payable, the Borrower must repay to NAB all of the Amount Owing on the Termination Date.
For the purposes of these Global Trade Finance Specific Conditions:
Approved Currency means the currency or currencies approved by NAB in writing from time to time.
Australian Dollar Equivalent means, in respect of:
Available Facility means, in respect of a Facility at any time, the Australian Dollar Equivalent of the Facility Limit minus the Australian Dollar Equivalent of the Balance Owing at that time.
Availability Period means, in respect of a Facility, the period from the date of this document to the Expiry Date.
Banking Day means a day other than;
BBSY means the rate determined by NAB which is equal to the higher of zero and the "bid rate" administered by ASX Benchmarks displayed on page BBSY of the Thomson Reuters Screen on the first day of that Pricing Period for a period equal to that Pricing Period (or where the Pricing Period is less than 1 month, a period of 1 month) and which starts on that day. If such rate is not available or if, in NAB's reasonable opinion, the rate becomes inappropriate, the Floating Rate will be the rate reasonably determined by NAB to be the appropriate equivalent rate, having regard to the prevailing market.
Beneficiary means, in relation to a Standby Letter of Credit, the person to whom the Standby Letter of Credit is to be, or has already been, issued and any assignee of such person.
Cut-Off Time means:
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Facility means a facility in respect of which these Global Trade Finance Specific Conditions apply, as stated in the Details.
Issue Date means the date on which a Letter of Credit is issued or to be issued.
Letter of Credit means a documentary letter of credit or a standby letter of credit issued by NAB pursuant to a Facility.
LIBOR means the higher of zero and the following rate determined as of 11.00am London time at the time of the Drawing and for a period equal in length to the Term of Drawing:
Maximum Liability means, in respect of a Letter of Credit, the amount specified in that Letter of Credit as the maximum liability (exclusive of interest on that maximum liability) under that Letter of Credit.
Utilisation means the issue of a Letter of Credit by NAB at the Borrower's request.
Value Balance has the meaning given to it under the "NAB Foreign Currency Account- Onshore Terms and Conditions".
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Borrowing Base Annexure to the Global Trade Finance Specific Conditions
This Annexure applies if the Facility Details for a Trade Refinance Facility specify that it applies. It is to be read in conjunction with the Business Lending General Terms and the Global Trade Finance Specific Conditions which apply to this Facility.
In addition to clause 4 of the Business Lending General Terms and clause 4 of the Global Trade Finance Specific Conditions, the additional requirements for the first drawing of the Facility are set out in clause 2.1 and the additional requirement for each use of the Facility is set out in clause 2.2.
Before you provide us with the first Drawdown Notice under the Facility, we must have received the following, in form and substance satisfactory to us:
Before you provide us with any Drawdown Notice under the Facility, we must have received any additional documents or information we reasonably request for the purposes of determining the Borrowing Base Limit or the operation of this Facility, in form and substance satisfactory to us.
Each Drawdown Notice must be substantially in the form attached to this _Annexure. You may only submit a Drawdown Notice if:
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In addition to your other promises, you also make the following promises to us,
free and clear of any Security Interest, and you are lawfully entitled to assign or grant any Security Interest over any receivable or inventory listed in a Borrowing Base Report, and there are no restrictions or prohibitions on you doing so.
5.
ADDITIONAL UNDERTAKINGS
In addition to your other undertakings to us, you must:
The report must reflect the current position as at the date it is provided to us.
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You undertake to us that, for so long as you have any outstanding obligations or liabilities to us in connection with this Facility, you must:
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Clause 11 (Default) of the Business Lending General Terms -which sets out provisions in relation to Default, including Payment Defaults and Adverse Events (and their consequences) - applies to this Agreement. In addition, as this is a Specialised Facility, an Adverse Event will also occur under this Facility if: • •
If you are in Default and we are entitled to take Enforcement Action, in addition to any other rights and obligations under the Business Lending General Terms:
If the Facility involves a foreign currency and if the amount of a proposed drawing in a Drawdown Notice would cause the Balance Owing in Australian Dollars (when we notionally convert it at our prevailing Exchange Rate) to exceed the Borrowing Base Limit, we may amend the Drawdown Notice so that the Borrowing Base Limit will not be exceeded as a result of such drawing.
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11. FEES 12. ACKNOWLEDGEMENT AND CONSENT 13. INTERPRETATION AND MEANING OF WORDS In addition to any other fees payable under this Agreement (including those set out in the Facility Details), you must pay the Drawdown Fee in respect of each drawing on the repayment date for that drawing. You agree and acknowledge that, for the purposes of our ongoing monitoring of the Facility and to assist us to manage our risks under the Facility, we may wish to provide information about you and the Facility to a service provider (including any service provider located outside Australia). You irrevocably consent to this occurring, provided at all times that the service provider has obligations of confidentiality to us. Capitalised terms used in this Annexure with a specific meaning are explained in the Facility Details, the Business Lending General Terms or below. Advance Rate means the rate corresponding to the relevant inventory category and Approved Storage Location, as follows: | |||
| Inventory category | Approved Storage Location | Advance Rate |
Tier 1 -All: | Various (all Rights of Entry held by | 60% | |
Wheat | NAB for recorded locations) |
| |
Barley |
|
| |
Sorghum |
|
| |
Canela |
|
| |
Tier2-All: |
| 60% | |
Lupins |
|
| |
Peas |
|
| |
Beans |
|
| |
Lentils |
|
| |
Chick Peas |
|
| |
Vetch |
|
| |
Sunflower |
|
| |
White Clover |
|
| |
Medic |
|
| |
Lucerne (Alfalfa) |
|
| |
Sunflower |
|
| |
Triticale |
|
| |
Rye Grass |
|
| |
Fescue |
|
| |
Oats |
|
| |
Brassica & Herbs |
|
| |
Forage Cereals |
|
| |
Multi-crop Blends |
|
| |
Grass |
|
| |
Tropical Grasses . |
|
| |
Tropical Legumes |
|
| |
Turf |
|
| |
Annual Ryegrass |
|
| |
Perennial Ryegrass |
|
| |
Millet |
|
| |
|
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Approved Buyer means:
Approved Inventory means inventory described in the table in the definition of Advance Rate (including all industry accepted grades and sub type of the types listed as such) which inventory also satisfy the following criteria:
Approved Inventory Location means each of the following locations:
Approved Receivables means receivables of yours in respect of which:
Approved Storage Location Operator means all storage locations listed above, or such other operators as you and we agree in writing.
Borrowing Base Limit means the lesser of the Facility Limit and the total of the following:
Borrowing Base Report means a report which provides information in relation to the Approved Inventory and Approved Receivables including:
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{a) information in sufficient detail for us to be able to identify type, grade, volume, value and location of inventory and identify amounts receivable from each Approved Buyer;
{b) details of all Approved Inventory, including:
Buyer Limit for an Approved Buyer means in respect of a Trade Credit Insured Receivable, the lesser of the limit specified for a buyer under the Insurance Policy and any limit nominated for that buyer by us from time to time.
Contract means a contract for goods or services.
Current Market Value means the current market value calculated using the method determined by us from time to time.
Drawdown Fee means $100 per drawing.
General Field Inspection has the meaning it has in clause 5.1(d)(i)(A) of this Annexure.
·inspection Agent means RSM or any substitute agent appointed by us from time to time.
Insurance Policy means each insurance policy set out below:
{a) an insurance policy issued by an Approved Insurer in your and our name as first loss payee in form and substance satisfactory to us covering commercial default or non-payment (and
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country risk if applicable) in relation to the payment obligations of the buyer under a Contract and each Invoice related to that Contract;
Location Limit, in respect of an Approved Inventory Location, means the limit nominated for that Approved Inventory Location by us from time to time.
Relevant Document means each of the following:
Risk Management Policy means a risk and collections policy with respect to inventory and receivables management.
Sanctioned Country means a country affected by Australian sanction laws as notified by the Commonwealth Department of Foreign Affairs and Trade at http://dfat.gov.au/international relations/security/sanctions/sanctions-regimes/Pages/sanctions-regimes.aspx
Site Quality Inspection Due Diligence Report means a site quality inspection due diligence report provided by the Inspection Agent addressed to us setting out the results of the inspection in relation to [the Inventory and each Approved Inventory Location and covering any other matters as may be notified to you by us.
Storage and Handling Agreement means an agreement between you and an operator of a storage facility.
Tier 1 Approved Inventory means:
Tier 2 Approved Inventory means:
-•
•
•
•
Lupins • Peas Beans Lentils Chick Peas Vetch Sunflower
White Clover Medic
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•
•
•
•
•
•
•
•
•
•
•
•
•
.Rye Grass Fescue Oats
Brassica & Herbs
Forage Cereals Multi-crop Blends Grass
Tropical Grasses Tropical Legumes Turf
Annual Ryegrass Perennial Ryegrass
Millet
Trade Credit Insured Receivables means each Approved Receivable that is insured by an Approved Insurer for no less than 90% of the accounts receivable value.
Trade Refinance Facility or this Facility means any Facility titled 'Trade Refinance Facility' in the Facility Details to which this Annexure applies.
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To: National Australia Bank Limited ABN 12 004 044 937 Level3
1 Homebush Bay Drive
Rhodes NSW 2138
Attention: Borrowing Base Trade Refinance Team (NAB)
From: S&W Seed Company Australia Pty Ltd (ABN: 44 061 114 814) (Customer or We)
BORROWING BASE TRADE REFINANCE - DRAWDOWN NOTICE
We refer to the Business Letter of Offer between NAB and the Customer dated.............
(Agreement).
We request NAB to provide the loan described in this form.
Section A Request (complete all sections)
Proposed Drawdown Date |
|
Facility Limit (Currency and amount of Facility Limit) | AUD40,000,000.00 |
Amount (Currency and amount of proposed drawing) |
|
Term of drawing (Number of days) |
|
Drawing Repayment Date |
|
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Proceeds of this drawing are to be credited to the Customer's Nominated Account (as defined in the Agreement).
Section B Repayment Instructions
On the Drawing Repayment Date, NAB is authorised to debit the Customer's Nominated Account (as defined in the Agreement), with the Amount plus the applicable interest, fees and charges.
Section C Borrowing Base Report
D Copy of the Borrowing Base Report relating to this drawing is attached.
We certify the Borrowing Base Report accompanying this request is true and correct as at the date of this request.
Section D Acknowledgement and Authority
We agree and acknowledge that:
This request is governed by the terms and conditions of the Agreement. This request is irrevocable.
For and on behalf of
(Full name and ACN/ABN of applicant) By:
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(Authorised Signature) (Authorised Signature)
(Name in block letters) (Name in block letters)
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MULTI-OPTION FACILITY SPECIFIC CONDITIONS
The following additional conditions precedent apply to the initial Drawing:
in form and substance satisfactory to NAB.
Option Facility do not exceed the Multi-Option Facility Limit; and
Option Facility do not exceed the Multi-Option Facility Limit; and
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If approved by NAB in writing, any change to a Facility Limit will take effect on and from the date and on the terms agreed by NAB and the Borrower. •
The Multi-Option Facility Limit automatically reduces:
On and from the Termination Date for the Multi-Option Facility:
In the case of a Facility (other than an Asset Finance Facility or a Credit Card Facility) listed as a Facility subject to the Multi-Option Facility, the Specific Conditions for that Facility apply to that Facility in addition to these Multi-Option Facility Specific Conditions.
For the purposes of these Multi-Option Facility Specific Conditions:
Available Facility means, at any time in respect of any of the Facilities subject to the Multi-Option Facility, the Facility Limit for that Facility minus the Balance Owing for that Facility at that time.
Facilities subject to the Multi-Option Facility means the facilities specified as such in the Details for the Multi-Option Facility.
Maximum Facility Limit means, for a Facility subject to the Mu/ti-Option Facility, the maximum facility limit specified in the Details for that Facility, as reduced, cancelled or varied from time to time in accordance with this document.
Multi-Option Facility means any Facility titled "Multi-Option Facility" in the Details.
Multi-Option Facility Limit means the multi-option facility limit specified in the Details for the Multi Option Facility, as reduced, cancelled or varied from time to time in accordance with this document.
ANNEXUREA
To: National Australia Bank Limited (NAB)
Finance Agreement dated [] between insert name and ACN] (the Company) and NAB (the
•Agreement)
[Request to allocate Facility Limits] [Request to change Facility Limits]
We refer to the Multi-Option Facility Specific Conditions forming part of the Agreement.
This is a request to [allocate the initial Facility Limit for each of the Facilities subject to the Multi-Option Facility] [change the Facility Limit applicable to any of the Facilities subject to the Multi-Option Facility].
We wish to apply for the Facility Limit for each of the Facilities subject to the Multi-Option Facility to be [allocated] [changed] as follows:
Facility A: [Facility Limit] Facility B: [Facility Limit] Facility C: [Facility Limit]
Executed by [insert name of company] in accordance with Section 127 of the Corporations Act2001
Signature of director Signature of director
Name of director (print) Name of director/company secretary (print)
Executed by [insert name of company] in accordance with Section 127 of the Corporations Act2001
Signature of sole director and sole company secretary
who states that he or she is the sole director and the sole company secretary of the company
Name of sole director and sole company secretary (print)
Signed by [insert name of signatory] in the presence of
Signature of witness Signature
Name of witness (print)
The common seal of Insert name of company] is fixed to this document in accordance with its constitution in the presence of
Signature of director Signature of director/company secretary
Name of director (print) Name of director/company secretary (print)
The common seal of [insert name of company] is fixed to this document in accordance with its constitution in the presence of
Signature of sole director and sole company secretary who states that he or she is the sole director and the sole company secretary of the company)
Name of sole director and sole company secretary (print))
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NAB CORPORATE MARKETS LOANSPECIFIC CONDITIONS
The following additional conditions precedent apply in relation to any Drawing:
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(b} The Borrower must repay to NAB the Amount Owing in respect of the Facility in full on the Termination Date.
(c) The Borrower irrevocably authorises NAB to debit to the Nominated Account any amounts payable or requested to be paid by the Borrower in relation to the Facility, including repayments, prepayments, interest, fees and charges, taxes, enforcement expenses and any amount payable under an indemnity.
The Borrower may prepay all or any part of the Balance Owing:
WARNING: Economic costs can be high and may increase the amount owed. You can ask NAB at any time for an estimate of economic costs.
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WARNING: Economic costs can be high and may increase the amount owed. You can ask NAB at any time for an estimate of economic costs.
WARNING: Before redrawing, the Borrower should consider the financial and taxation consequences of redrawing and, if unsure, should consider obtaining independent financial and/or taxation advice.
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If the Facility terminates before all instalments are paid, then the Borrower must pay NAB the full amount of the Premium (if any) less any instalments paid before such termination.
The Facility Fee is payable in arrears, from the date of establishment of the Facility, on the first Banking Day following the end of each Pricing Period and on the Termination Date. This fee is calculated on a daily basis on the Facility Limit on the basis of a 365 day year and the actual number of days elapsed.
The Undrawn Fee is payable in arrears, from the date of establishment of the Facility, on the first Banking Day following the end of each Pricing Period, and on the Termination Date. This fee is calculated on a daily basis on the Available Facility on the basis of a 365 day year and the actual number of days elapsed.
For the purposes of these NAB Corporate Markets Loan Specific Conditions:
Availability Period means, in respect of the Facility, the period from the date of this document to the Termination Date.
Available Facility means, in respect of the Facility at any time, the Facility Limit less the Balance Owing at that time. •
Banking Day means a day other than a Saturday or Sunday, or a day gazette as a public holiday in Sydney or every state and territory of Australia.
BBSY for a Pricing Period means:
Cap Amount means the part of the Facility that is subject to either a Cap Rate or the Floating Rate, depending on their value, as determined in accordance with this document.
Cap Rate means, in respect of each Cap Rate Corporate Markets Loan Component, the Cap Rate specified in the relevant Drawdown Schedule or as otherwise determined in accordance with this document.
Corporate Markets Loan Component means the Floating Amount and each separate component (if any) of the Fixed Amount, Cap Amount and Range Amount.
Corporate Markets Loan Component Limit means, in respect of the:
as initially set out in the Details and subsequently set out in the Drawdown Schedule for a Corporate Markets Loan Component, as amended from time to time.
Drawn Margin means, in relation to the Facility, the drawn margin (if any) specified in the Details.
Economic Benefit means the amount determined in accordance with clause 6(b).
Facility Fee means, in relation to a Facility, the facility fee (if any) specified in the Details.
Fixed Amount means the part of the Facility that is subject to a Fixed Rate.
Fixed Rate means, in respect of each Fixed Rate Corporate Markets Loan Component, the Fixed Rate specified in the relevant Drawdown Schedule or as otherwise determined in accordance with this document.
FD<ed Rate Period means, in relation to a Drawing that has been allocated to the Fixed Amount, the period during which a Fixed Rate applies to that Drawing.
Floating Amount means the part of a Facility that is subject to the Floating Rate only.
Floating Rate means, in respect of a Facility, the rate specified in. the Details.
Floor Rate means, in respect of the Range Rate Corporate Markets Loan Component, the Floor Rate specified in the relevant Drawdown Schedule or as otherwise determined in accordance with this document.
Funding Margin means, in relation to the Facility, the funding margin specified in the Details for that Facility or as otherwise agreed.
Last Date for Initial Drawdown means the date listed as the last date for initial drawdown (if any) in the Details (as amended from time to time).
Maturity Date means the date on which a Fixed Rate Period or Range Rate Period is due to expire.
Premium means the "Cap/Range Rate Premium" specified in the Details.
Pricing Period means a period determined in accordance with the Details and clause 5.1, as adjusted in accordance with clauses 5.1(c) and (d).
Range Amount means the part of a Facility that is subject to a Range Rate.
Range Rate means, in respect of each Range Rate Corporate Markets Loan Component:
Range Rate Period means, in relation to a Drawing that has been allocated to the Range Amount, the period during which the Range Rate applies to that Drawing.
Reset Margin means, in relation to a Facility, the reset margin (if any) determined in accordance with clause 9.3.
Undrawn Fee means, in relation to a Facility, the undrawn fee (if any) specified in the Details.
OVERDRAFT FACILITY SPECIFIC CONDITIONS
The Facility must, at all times, be linked to an approved transaction account held with NAB solely in the Borrower's name (or if there are two or more Borrowers, held jointly by each Borrower) and not with any other person.
Any amount paid or repaid to the credit of the Facility is available for redraw in accordance with the terms of this document.
The Borrower must repay all or part of the Balance Owing on demand by NAB.
The Borrower must pay:
in each case excluding any amounts to which the Default Interest Rate applies.·
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If a Facility is a Farm Management Account Overdraft Facility, NAB may require that all, or an agreed part, of the Borrower's gross business income is credited to the Loan Account.
. 6. DEFINITIONS
For the purposes of these Overdraft Facility Specific Conditions:
Available Facility means, in respect of a Facility at any time, the Facility Limit less the Balance Owing at that time.
Availabili4' Period means, in respect of a Facility, the period from the date of this document to the Termination Date.
Facility means a facility in respect of which these Overdraft Facility Specific Conditions apply, as stated in the Details.
Fann Management Account Overdraft Facility means any Facility titled "Farm Management Account Overdraft Facility'' in the Details.
Tier One means the tier one amounts in respect of a Facility specified in the Details.
Tier Two means tier two amounts in respect of a Facility specified in the Details.
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GENERAL CONDITIONS -
FINANCE AGREEMENT
69
General Conditions - Table of Contents
ANNEXURES 117
70
GENERAL TERMS
(lnconsistencYJ.
This document is comprised of the following parts:
In this document, capitalised terms have the following meanings:
Accession Letter means a document substantially in the form set out in Annexure 4 (Form of Accession Letter).
Additional Borrower means a company which becomes an Additional Borrower in accordance with clause 29 (Assignment and Changes to the Obligors).
Additional Cross-Guarantor means a company which becomes an Additional Cross-Guarantor in accordance with clause 29 (Assignment and Changes to the Obligors).
Additional Security Provider means a person who becomes an Additional Security Provider in accordance with clause 29 (Assignment and Changes to the Obligors).
Affiliates means, in respect of an entity, each Related Body Corporate and each Related Entity of that entity and each Subsidiary of that
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entity (if not also a Related Body Corporate or a Related Entity of that entity).
Agency means any government or any governmental, semi-governmental or judicial entity or other authority. It also includes any self-regulatory organisation established under law.
Amortisation Schedule means, at any time, in respect of a Facility, the amortisation details specified in the Details (if any), as may be amended or replaced.
Amount Owing means all money which a Borrower (whether alone or not) is, or at any time may be, liable to pay NAB for any reason whatsoever under or in connection with the Finance Documents including the aggregate face value of any unmatured bills, the maximum amount payable by NAB under any Bank Guarantees or Letters of Credit and money by way of principal, interest, fees, Costs, indemnity, charges, duties or expenses irrespective of whether the liability is:
Asset Finance Facility means any Facility titled "Asset Finance Facility" in the Details.
ASIC means the Australian Securities and Investments Commission.
ASX means the Australian Securities Exchange.
Authorisation means:
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Authorised Officer means, in respect of an Obligor:
and whose specimen signature in that appointed capacity has been provided to NAB and who has satisfied any required Client Identification Checks.
Availability Period in respect of a _Facility, has the meaning given to it in the Specific Conditions for that Facility.
Available Facility in respect of a Facility, has the meaning given to it in the Specific Conditions for that Facility.•
Balance Owing:
to the extent that such amount is a debit balance. Where this amount is to be calculated for the end of a day, it includes all debits and credits assigned to that day;
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where each term within inverted commas has the meaning given to it in the Master Asset Finance Agreement.
Bank Guarantee means a bank guarantee, if any, issued by NAB under or in connection with this document.
Beneficiary means any beneficiary under a Trust.
Bill Facility means any Facility with the words "Bill Facility" in its title as stated in the Details.
Borrower means an Original Borrower or an Additional Borrower.
Business Day means a day other than a Saturday, Sunday or public holiday in every state and territory of Australia.
Change of Control has the meaning described in clause 13 (Change of Control).
Client Identification Checks means, at any time, any client identification or similar checks or procedures required in connection with any law or NAB's policies and procedures from time to time.
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Commercial Consignment has the meaning given in the PPSA.
Compliance Certificate means a certificate in substantially the form of Annexure 2 setting out (in reasonable detail) computations as to compliance with clause 10.1 (Financial Covenants) as at the applicable date or for the applicable period and confirming that no Default or Review Event (if any) is continuing, signed by two Authorised Officers of the Obligor and otherwise in form and substance satisfactory to NAB.
Compliance Committee means, in respect of a Scheme, the compliance committee of the Scheme established in accordance with Part 5C.5 of the Corporations Act.
Compliance Plan means, in respect of a Scheme, the plan complying with Part 5C.4 of the Corporations Act and lodged with ASIC under section 601EA of the Corporations Act.
Constitution means, in respect of a Scheme, the constitution of the Scheme made by the Responsible Entity from time to time and, at the date of this document, having the details set out in the Schedule.
Contested Tax means a Tax payable by an Obligor where the Obligor:
Controller has the meaning given to the term in the Corporations Act.
Corporations Ad means the Corporations Act 2001 (Cth).
Costs means costs, charges, fees and expenses, including those incurred in connection with NAB's internal and external legal advisers (on a full indemnity basis) and professional consultants.
Credit Card Facility means any Facility titled "NAB Qantas Business Signature Card Facility" or "NAB Business Card Facility" in the Details.
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Cross-Guarantor means an Original Cross Guarantor or an Additional Cross-Guarantor, unless it has ceased to be a Cross-Guarantor in accordance with clause 29 (Assignment and Changes to the Obligors).
Custodian means, at any time, the custodian of the Scheme Property from time to time and, at the date of this document, is the person identified as such in the Schedule, if any.
Custody Agreement means, in relation to a Scheme, the agreement between the Responsible Entity and the Custodian from time to time and, as at the date of this document, the agreement described as such in the Schedule, if any.
Customer Margin means, in respect of a Facility, the customer margin specified in the Details for that Facility or as otherwise agreed.
Dally Interest Rate means, for any day:
Deed of Cross Guarantee means a deed substantially in the form of a proforma deed issued or otherwise approved by ASIC in order to satisfy ASIC class order eligibility requirements for relief from certain Corporations Act financial. Reporting obligations.
Default means an Event of Default or a Potential Event of Default.
Default Interest Rate means:
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of a particular Facility, such as a fee incurred in connection with engaging a professional consultant, the default 'interest rate under any Facility NAB may select,
or as otherwise agreed or amended as contemplated in this document
Deposit Letter means a security agreement in the form required by NAB from time to time which grants NAB an Encumbrance over a deposit account.
Details means, at any time, the details set out in the Facility Details section of this document, as may be amended from time to time as contemplated in this document.
Dollars, Australian Dollars or$ means the lawful currency of Australia, unless otherwise stated in this document.
Drawdown Date means:
Drawdown Notice means a notice or other communication requesting a Drawing or otherwise giving instructions in relation to a Drawing, in a form and substance acceptable to NAB (including a notice substantially in the form of Annexure 3).
Drawdown Schedule means, in respect of a Facility, the drawdown schedule specified in the Details for that Facility (if any) or any drawdown schedule provided to the relevant Borrower by NAB.
Drawing means, in respect of a Facility, a provision of financial accommodation (including, if applicable, the acceptance, discounting and endorsement of bills and the issue of Bank Guarantees and Letters of Credit) under that Facility.
Economic Costs has the meaning described in clause 21.
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Economic Event has the meaning described in clause 21.
Encumbered Property means any asset, property or right the subject of an Encumbrance under a Security Document.
Encumbrance means:
(a) a security agreement, bill of sale, mortgage, charge, pledge, lien, trust or other security interest securing any obligation of any person and includes a security interest within the meaning of section 12 of the PPSA;
( ) any title retention arrangement;
owner) has to remove something from land (known as a profit a prendre),
easement, public right of way, restrictive covenant, positive covenant, lease 'or license to use or occupy;
or any agreement or arrangement to create any of them or allow them to exist.
Event of Default means any event or circumstance specified as such in this document or under any other Finance Document.
Expiry Date means, in respect of a Facility, the expiry date (if any) specified in the Details for that Facility.
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Facility means each facility referred to in the Details, including each Other Facility.
Facility Component means a Bill Facility Component, NAB Business Markets Facility Component or a Corporate Markets Loan Component, as the case may be, as each of those terms as defined in the relevant Specific Conditions. •
Facility Limit, at any time:
Fees Guide means NAB's "Business Banking Fees -A guide to fees and charges" as amended or replaced from time to time.
Finance Document means each of the following:
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and each document, agreement or notice entered into, or given, under or for the purpose of amending, novating or acceding to, any of the above.
Financial Indebtedness means any indebtedness for or in respect of:
0) any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or
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any other instrument issued by a bank or financial institution; and
irrespective of whether the indebtedness is:
Financial Statements means:
together with any notes to those documents and any accompanying reports, statements, declarations and other documents or information.
Fixed Rate Period means, in respect of a Facility or a Drawing, the period during which a specific interest rate or yield rate will apply and will not change.
Foreign Currency overdraft Facility means any Facility titled "Foreign Currency Overdraft Facility" in the Details.
GAAP means accounting standards, principles and practices applying l;>y law or otherwise which are generally accepted and consistently applied in Australia.
General Conditions means the provisions set out in the General Conditions - Finance Agreement section of this document.
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General Tenns means the conditions set out in this General Terms section of the General Conditions - Finance Agreement.
Global Trade Finance Facility means any Facility to which the Global Trade Finance Specific Conditions apply, as stated in the Details.
Goods has the meaning given in the PPSA.
Governing Law Jurisdiction means the jurisdiction specified as such in the Schedule.
Group means each Borrower and each of its Related Bodies Corporate and Subsidiaries (if not also a Related Body Corporate) or the group or groups of entities (if any) listed as such in the Schedule. •
GST means Goods and Services Tax as imposed under the GST Act.
GST Act. means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Guarantee means (other than in clause 27 (Guarantee and Indemnity)) any guarantee, letter of credit, bond, indemnity or similar assurance against loss, or any obligation, direct or indirect, actual or contingent, to purchase or assume any indebtedness of any person or to make an investment in or loan to any person or to purchase assets of any person where, in each case, such obligation is assumed in order to maintain or assist the ability of such person to meet its indebtedness or to assure any creditor against loss.
Head Company means the head company (as defined in the Tax Act) of a Tax Consolidated Group.
Hedging Agreement means each derivative transaction protecting against or benefiting from fluctuations in any rate or price, which is entered into or to be entered into by an Obligor with NAB, including any novation agreement, master agreement and transaction or confirmation under or relating to them.
Increased Costs has the meaning given to it under clause 20(b).
Indicator Rate means, for any day, in respect of a Facility, the relevant type of indicator rate specified in the Details for that Facility where the amount is as:
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Insolvency Event means, in respect of a person, any of the following events:
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U) it takes any step to obtain protection, or are granted protection, from creditors, under any applicable law;
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it resolves or take any action to wind up itself up, or otherwise dissolve itself, or it• is otherwise wound up or dissolved, except to reconstruct or amalgamate while solvent on terms pre-approved by NAB in writing;
execution or distress or any other process is levied or attempted or imposed against or over any of its undertaking, property or assets;
a compromise, arrangement, assignment, moratorium or composition is proposed with, or becomes effective in relation to, its creditors or any class of its creditors (in each case, other than to carry out a reconstruction or amalgamation while solvent on terms approved by NAB in writing);
an application or order has been made (and, in the case of an application, it is not stayed, withdrawn or dismissed within 5 Business Days), a resolution is passed, a proposal is put forward, a meeting is convened, or any other action is taken, in each case in connection with it, which is preparatory to or could result in any of the things referred to in paragraphs (a) to (f) (inclusive) above;
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Intellectual Property means all trade secrets, confidential information, know-how, patents, trade marks, designs (whether registered or unregistered), copyright, and computer programs.
Interest Period means, in respect of a Facility, the period for which interest is calculated and charged as stated, or selected if provided for, in this document or as otherwise agreed.
Interest Rate means, at any time in respect of a Facility, the per annum rate of interest applicable to that Facility or part of that Facility as formulated in accordance with the Details for that Facility or as otherwise agreed or amended as contemplated in this document.
Interested Person has the meaning given to that term for the purposes of section 275 of the PPSA, and includes:
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Ipso Facto Event means a Borrower is the subject of:
Letter of Credit means a documentary letter of credit or a standby letter of credit issued by
_NAB pursuant to a Facility.
Loan Account means an account with NAB for the purposes of recording transactions in connection with a Facility and includes, in relation to an overdraft {including a Foreign Currency Overdraft Facility), the associated transaction account.
Mandatory Prepayment Period means, in respect of a Review Event, the period specified as such in the Schedule which begins on the date on which NAB gives notice to the Borrowers under clause 14.5(c).
Market Rate Facility means any Facility titled "Market Rate Facility" in the Details.
Marketable Security means:
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Master Asset Finance Agreement means a master asset finance agreement in NAB's standard form.
Material Adverse Effect means any material adverse effect (in the opinion of NAB) on:
Material Authorisation means, for an Obliger, any Authorisation required:
Material Documen1s means:
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NAB Business Markets Facility means any Facility titled "NAB Business Markets - Flexible Rate Loan" in the Details.
NAB Corporate Markets Loan means any Facility titled "NAB Corporate Markets Loan" in the Details.
Negotiation Period means, in respect of a Review Event, the period specified as such in the Schedule which begins on the date on which NAB becomes aware of the occurrence of the Review Event.
Nominated Account means, in respect of a Facility, the NAB account described in the Details as being the nominated account for that Facility, or such other bank account nominated from time to time by the relevant Borrower and acceptable to NAB and, on the date of this document, is the bank account described as such in the Details for that Facility.
Obligor means a Borrower, Cross-Guarantor or Security Provider.
Original Borrower means each person listed as a borrower in Item 1 {Obligors and Group) of the Schedule.
Original Cross-Guarantor means each person listed as a cross-guarantor in Item 1 {Obligors and Group) of the Schedule.
Original Obligor means an Original Borrower, Original Cross-Guarantor or Original Security Provider.
Original Security Provider means each person listed as a security provider in Item 1 {Obligors and Group) of the Schedule.
Other Facility means any facility referred to in the Details under the heading "Other Facilities".
Package means any product with the words "Package" or "Multi-Option" in its name.
Partner means, in respect of a Partnership, the relevant Obligor which is a partner in the Partnership.
Partnership means, at any time, a partnership in respect of which an Obligor is a partner at that time and includes each partnership specified in the Schedule.
Partnership Agreement means, in respect of a Partnership, the instrument establishing, or setting out the terms of, the Partnership and
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any other constituent documents relating to the Partnership.
Partnership Documents means, in respect of a Partnership:
Partnership Property means, in respect of a Partnership, all assets, rights, property and undertaking which are the subject of the Partnership:
Partnership Provisions means the provisions set out in the Partnership Provisions section of these General Conditions - Finance Agreement (if applicable).
Permitted Disposal means any sale, lease, transfer or other disposal on arm's length terms and for market consideration:
Permitted Encumbrance means:
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(b} any Encumbrance created under a Finance Document;
Permitted Financial Indebtedness means any Financial Indebtedness:
Potential Event of Default means any event or circumstance which would, with the lapse of time, the giving of notice, the making of any determination under any Finance Document, the fulfilment of any condition or any combination of any of the foregoing, be an Event of Default.
PPS Lease has the meaning given in the PPSA.
PPSA means the Personal Property Securities Act 2009 (Cth).
Pricing Period means, in respect of a Facility, the period set out in the Specific Conditions for that Facility (if applicable}.
Pricing Review has the meaning given to it in clause 14.1 (Pricing Review Events).
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Privacy Statement means the statement as contained in Annexure 7.
Property Conditions means the conditions set out in the Property Conditions section of this document (if applicable).
Range Amount has the meaning, if any, set out in the Specific Conditions for a Facility.
Receiver means a receiver, receiver and manager or controller as defined in the Corporations Act.
Recipient has the meaning as given to it in the GST Act.
Registered Scheme means a registered scheme as defined by the Corporations Act.
Regulatory Event means any:
whether in Australia or elsewhere, that, in NAB's good faith opinion, or that of another financial institution, applies in any way to an Obliger, or Service.
Related Body Corporate means, in respect of an entity, each related body corporate (as defined in the Corporations Act) of that entity.
Related Entity means, in respect of an entity, each related entity (as defined in the Corporations Act) of that entity.
Repricing Date, in respect of a Facility, has the meaning given to it in the Specific Conditions for that Facility (if any).
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Resignation Letter means a letter substantially in the form set out in Annexure 5 (Form of Resignation Lette)..
Responsible Entity means, in respect of a Scheme, the relevant Obligor which is a responsible entity of the Scheme:
Responsible Entity Provisions means the provisions set out in the Responsible Entity section of these General Conditions - Finance Agreement (if applicable}.
Review Event means each event specified as such in the Schedule.
Schedule means the Key Information section of this document.
Scheme means, at any time, a Registered Scheme in respect of which an Obligor is a responsible entity and includes each Registered Scheme specified in the Schedule.
Scheme Documents means, in respect of a Scheme:
(d} each other document which an Obligor or the Responsible Entity and NAB agree in writing is a Scheme Document.
Scheme Property means, in respect of a Scheme, the scheme property (as defined by the Corporations Act) of the Scheme.
Security Documents means:
Security Provider means an Original Security Provider or an Additional Security Provider unless that person has ceased to be a Security Provider in accordance with 29 (Assignment and Changes to the Obligors).
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Service means any service NAB provides to the Borrower under or in relation to a Facility including making or processing any payment or issuing any document.
Specific Conditions means, at any time, the conditions set out in the Specific Facility Terms section of this document which apply to each Facility (as stated in the Details of that Facility), as may be amended from time to time in accordance with this document.
. Subsidiary has the meaning given to it in the Corporations Act, but as if body corporate includes any entity. It also includes any entity required by GMP to be included in the consolidated annual financial report of an entity or which would be required if that entity were a corporation. A trust or Registered Scheme may be a Subsidiary (and a unit or other beneficial interest in the trust or Registered Scheme is to be treated as a share accordingly} and an entity is to be treated as a Subsidiary of a trust or Registered Scheme as if that trust or Registered Scheme were a corporation.
Superannuation Laws means the Superannuation Industry (Supervision) Act 1993 (Cth}, regulations made under that Act and any other instrument made under that Act or those regulations.
Supply has the meaning given to it in the GST Act.
Tax means any tax, levy, impost, duty or other charge or withholding of a similar nature including any penalty, interest, fine or expense payable in connection with any failure to pay, or any delay in paying, any of the same.
TaxAct means the Income Tax Assessment Act 1936 (Cth) or the Income Tax Assessment Act 1997 (Cth), as the context requires.
Tax Consolidated Group means a "Consolidated Group" or a "MEC Group" (each having the meaning given to it in the Tax Act).
Tax Invoice has the meaning given to it in the GST Act.
Taxable Supply has the meaning given to it in the GST Act.
Tenancy Schedule means a schedule of leases detailing the following information in relation to each of the leases:
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G) rent review details;
Termination Date means, in respect of a Facility, the date being the earlier of:
TFA means a tax funding agreement between the members of a Tax Consolidated Group which includes:
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tax offsets) as a result of being a member of the Tax Consolidated Group; and
Threshold Amount means the amount specified as such in the Schedule.
Transaction Document means a Finance Document or a Material Document.
Transactional Specific Documents means, in respect of a Facility, the standard form documents in connection with that Facility which NAB requires an Obligor to execute or accept under or to establish that Facility.
Trust means, at any time, a trust or settlement in respect of which an Obligor is a trustee at that time and includes each trust specified in the Schedule.
Trust Deed means, in respect of a Trust, the document establishing the Trust and any other constituent document relating to the Trust.
Trust Documents means, in respect of a Trust:
Trust Property means, in respect of a Trust, all the rights, property and undertaking which are the subject of the Trust:
Trustee means, in respect of a Trust, the relevant Obligor which is a trustee of the Trust.
Trustee Provisions means the provisions set out in the Trustee Provisions section of these General Conditions - Finance Agreement (if applicable).
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TSA means an agreement between the members of a Tax Consolidated Group which takes effect as a tax sharing agreement under section 721-25 of the Tax Act and complies with the Tax Act and any law in connection with the Tax Act.
Verification Certificate means a certificate substantially in the form of, and with the attachments referred to in, Annexure 1, signed by two directors or a director and company secretary of the Obligor (if the Obligor has more than one director) or by the director of the Obligor (if the Obligor has only one director) and otherwise in form and substance satisfactory to NAB.
.asset (including intellectual property) and any right, interest, revenue or benefit in, under or derived from the property or asset;
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has not been waived by NAB in writing;
amended, novated, supplemented, extended, replaced or restated;
responsible entities in the position of the relevant party would normally comply;
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persons is for the benefit of them jointly and each of them individually;
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(i)
(ii)
(iii)
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the Details (and where a Facility comprises part of a Package, the Details relating to the Package prevails over the Details relating to that Facility);
the Property Conditions (if any);
the Specific Conditions (and where a Facility comprises part of a Package, the Specific Conditions relating to the Package prevail over the Specific Conditions relating to that Facility);
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whole and each part of it, but nothing in this clause 1.4 (Interpretation) implies that the performance of part of an obligation constitutes performance of the obligation;
.the ground that the party put it forward.
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Unless expressly stated otherwise, any inconsistency as between a provision in this document and a provision in any other Finance Document will be resolved, to the extent of the inconsistency, in the following order of priority:
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(a)
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For the avoidance of doubt, this clause
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Facility or Other Facility (as the case may be) prevail to the extent of the inconsistency except that:
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(b)
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in the sub-clauses below.
Unless expressly stated otherwise, any inconsistency as between the terms of a Facility will be resolved, to the extent of the inconsistency, in the following order of priority:
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the Facility Limit for the Asset Finance Facility or Credit Card Facility (as the case may be) may be changed in accordance with the Specific Conditions for a Multi Option Facility; and
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NAB may give notice to the Obligors requiring the Obligors to do anything (including amending any Finance Document or executing any new Finance Document) that in NAB's opinion is reasonably necessary to ensure that, to the maximum possible extent, NAB's security position, and rights and obligations, are not adversely affected as contemplated by clause (A) (or that any such adverse effect is overcome), or that NAB's security position is improved as contemplated in clause (B) and the Borrowers must comply with the requirements of that notice within the time stipulated in the notice.
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Each Facility is made available during its Availability Period on the terms set out in this document.
The Borrower must apply all Drawings under a Facility for the purpose specified for that Facility in the relevant Details or for any other purpose that NAB approves in writing. NAB is not bound to monitor or verify the application of any Drawings.
NAB's obligation to provide the first Drawing under any Facility to any Borrower is subject to NAB first receiving the following documents, each in form and substance satisfactory to NAB:
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Document duly executed by each party to that document;
NAB will only be required to provide a Drawing under a Facility if the following conditions are met:
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accordance with the Specific Conditions (or separate terms and conditions} for that Facility, NAB has received a Drawdown Notice completed and signed or submitted in accordance with clause 31(b} (Communications and Notices} by the relevant Borrower;
Unless otherwise required by NAB, each document specified in respect of an Obligor in clause 3.1 (Initial conditions preceden4 or clause 3.2 (Furtherconditionspreceden4 must
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be an original. If NAB requires a certified copy Conditions or, if no Specific Conditions of a document, the copy must be certified by a apply, the separate terms and conditions director or secretary of that Obliger as true and applying to that Facility.
complete as at a date no earlier than 5
Business Days before the first Drawdown Date. (b) A Borrower of a Facility must, in respect
of that Facility, prepay the Balance Owing
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in the Specific Conditions or, if no If NAB reasonably determines that it is or will Specific Conditions apply, the become unlawful (or impossible in practice as a separate terms and conditions result of a change in law) in any jurisdiction for applying to that Facility; and NAB to perform any of its obligations under this
document or to fund or maintain any Drawing
Facility Limit, (a) NAB will promptly notify the relevant Borrower upon becoming aware of that
together with accrued interest calculated event; in accordance with the applicable Specific
Conditions or, if no Specific Conditions (b) the Facility will be immediately cancelled; apply, in accordance with the separate and
terms and conditions applying to that
Facility on the amount referred to in (c) the relevant Borrower must prepay the clauses (i) or (ii) (as the case may be). Amount Owing on the date specified by
NAB in its notice.
the Amount Owing in respect of the 5.4 Restrictions
Facility on its Termination Date.
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Unless otherwise specified in this document:
(a) no amount cancelled may be
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of a Facility in accordance with the
Specific Conditions or; if no Specific (i) accrued interest on the amount Conditions apply, the separate terms and prepaid calculated in accordance
conditions applying to that Facility. with the applicable Specific
Conditions or, if no Specific
Borrower, each Available Facility on the terms and conditions applying to
last day of the relevant Availability Period. that Facility; and
or, if no Specific Conditions apply, the prepayment (if any); and separate terms and conditions applying to
that Facility. (c) no Borrower may reborrow any part of a Facility that is prepaid.
in accordance with the Specific
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Each Borrower of a Facility must, in respect of
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7.1 Partners
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that Facility, pay interest on the Balance Owing If, at any time, there is a Partnership, the terms in accordance with the Specific Conditions or, if and conditions set out in the Partnership
no Specific Conditions apply, the separate Provisions apply to the relevant Obligor which terms and conditions applying to that Facility. is a Partner of that Partnership.
and including the date of actual payment
(both before and after judgment) at the 7.3 Trustees
Default Interest Rate.
If, at any time, there is a Trust, the terms and
Borrower must pay, interest on the
excess at the Default Interest Rate at the 7.4 Self-managed superannuation funds
end of each day that an excess exists.
(a) If a Borrower is a trustee of a self-
ordinarily debited from an account with those laws. or accounts under that Facility,
added to the .Balance Owing for that (b) If an SMSF Borrower wishes to use a Facility on each date on which Facility to buy an asset, it will need to sign
interest is debited for that Facility; and comply with the terms of a
Superannuation Acquisition Financing
amount monthly and when the
overdue amount is paid, or debited (c) NAB's recourse to an SMSF Borrower's from the Nominated Account for that fund will be limited in accordance with the Facility (or, if permitted by this terms of the Superannuation Acquisition document, any other account held Financing Deed or Superannuation
by the Borrower) on each date on Financing Deed. The terms of the
which interest is debited for that Superannuation Acquisition Financing
Facility, unless NAB otherwise Deed or Superannuation Financing Deed
specifies; or prevail over any inconsistent term in another Transaction Document.
a Finance Document that is not in (d) Due to the requirements of the
respect of a particular Facility, Superannuation Laws, despite any other
payable at such time as NAB term in a Transaction Document, no
selects. SMSF Borrower can redraw any amount it repays under a Facility.
(e) If an SMSF Borrower used a Facility to buy an asset, it agrees not to overdraw its accounts and to pay, or direct its security trustee to pay, NAB any proceeds received:
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•
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Each Obligor makes the following representations and warranties on the date of this document:
. any material respect,
and, excluding the Finance Documents, in each case, do not and will not:
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- entering into and performing its obligations under each Transaction Document to which it is expressed to be a party;
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decision to enter into the Finance (n) (investigation by Agency) no investigation Documents; by any Agency into all or part of the
affairs of any Obligor is current in
and (o) (no immunity) no Obligor has, and no assets of any Obligor have immunity from
default under any other agreement
or instrument which is binding on (p) (Financial Statements):
any Obligor, or to which its assets
are subject, which could have a (i) the most recent Financial Material Adverse Effect; Statements (consolidated as
required under applicable law)
occurred in respect of any Obligor; contemplation of, this document were prepared in accordance with
writing, it has not entered into any other in those Financial Statements;
Transaction Document, and no Obligor
holds any property: (ii) the most recent Financial Statements (consolidated as
Registered Scheme; (A) the financial position (including actual and contingent
basis as at the date to which
(I) (Authorised Officers) any person (8) the performance of those specified as an Authorised Officer of an entities during the accounting
Obligor is authorised to sign or (in the period to which the Financial
case of an unsigned notice) submit any Statements relate; and
requests and other notices on its behalf
and do all other things contemplated by (iii) there has been no material adverse the Transaction Documents to which it is change in the business or financial
expressed to be a party; condition of any of the relevant
entities since the last day of that
(m) (no litigation) except as disclosed to and accounting period to which the agreed by NAB in writing, no litigation, Financial Statements referred to in
arbitration, other dispute resolution clauses (i) and (ii) relate;
process or civil, criminal or administrative
proceedings are current, pending or (to (q) (tax consolidation):
the best of its knowledge and belief,
having made due enquiry) threatened (i) except as disclosed to, and agreed . before any court, arbitral body or Agency by, NAB in writing, no Obligor is a
affecting any Obligor or its assets which, member of a Tax Consolidated
if adversely determined, could have a Group; and Material Adverse Effect;
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Consolidated Group (which has
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been disclosed to, and agreed by, NAB in writing), each member of the Tax Consolidated Group is a party to a TSA and a TFA;
(w} (Financial Indebtedness) no Financial Indebtedness subsists other than Permitted Financial Indebtedness;
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Intellectual Property necessary for the conduct of its business;
(aa) (other) each other representation or warranty (if any):
is true and correct.
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entity becomes) ari Additional Obligor,
by reference to the current facts and circumstances subsisting on that date.
Each Obligor undertakes to:
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against any Obligor before any court, arbitral body or Agency affecting it or its assets which, if adversely determined, could have a Material Adverse Effect;
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maintain in full force and effect any Material Authorisation; and
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Nothing in this clause prevents NAB from obtaining (at its own cost) any valuation of the Encumbered Property at any time that NAB requires;
(8) are prepared using GMP consistently applied;
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entities on a consolidated basis, in the case of financial position, as at the date stated in the Financial Statements, and, in the case of financial performance, for the period to which those Financial Statements relate; and
(i). redeem, buy-back, defense, retire or repay any of its share capital or resolve to do so;
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without NAB's prior written consent;
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a Material Document;
(aa) (further assurances) promptly:
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. created under the Security Documents or for the exercise of rights or remedies of NAB by or pursuant to any Finance Document or law;
(G} demonstrate whether the Obligors are complying with each Finance Document to which they are expressed to be a party; and
(bb) (other undertakings or conditions subsequent) comply with each other undertaking or condition subsequent set out, or as amended by any other provision, in this document.
Each Borrower must comply with the financial covenants set out in the Schedule (if any) and in any other part of this document (if any).
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Each Obligor must comply with the hedging requirements set out in the Schedule (if any) and in any other part of this document (if any).
Each of the following events or circumstances is an Event of Default:
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which it is expressed to be a party is (k) (repudiation) an Obliger repudiates any incorrect or misleading when made or Finance Document to which it is
deemed to be repeated; expressed to be a party or evidences an intention to repudiate a Finance
within any applicable grace period; criminal or administrative proceedings are
current, pending or threatened before any
payable prior to its specified
maturity (where such indebtedness (m) (cessation of business} any Obliger
in NAB's reasonable opinion is likely ceases or threatens to cease conducting to have a material adverse impact its business, or a material part of it, or on the ability of the Obliger or the substantially changes the nature of its member of the Group to meet its business, without NAB's prior written
obligations to NAB); or consent;
cancelled or suspended by a the affairs of an Obliger or a Related creditor of an Obliger as a result of Entity and that investigation could have a an event of default or change of Material Adverse Effect;
control (however described);
listed or quoted on any securities
distress or execution (or any analogous Securities is removed from the official list process in any jurisdiction) affects any of that securities exchange, is terminated
asset of an Obliger having an aggregate or is suspended and remains suspended value of at least the Threshold Amount for a continuous period of 10 or more and is not stayed or withdrawn within 5 trading days;
Business Days;
Obliger to perform a material obligation
under a Finance Document to which it is (q) (status of Encumbrance):
expressed to be a party;
(i) (material adverse change) an event or an Obliger is enforced or becomes series of events (whether or not related) capable of being enforced;
occurs which, in NAB's reasonable
opinion, could have a Material Adverse (ii) NAB loses the priority accorded to it Effect; under any Encumbrance created or
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intended to be created under a Security Document;
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the notice or an Event of Default of the same type continues to exist.
_remedies NAB may have (including under a Security Document or this document), NAB may without the need to give any prior notice, immediately or at any later time:
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whether or not the power has statutory, legal or equitable force or is based on statutory, legal or equitable rights and whether or not it arises by means of trusts, agreements, arrangements, understandings, practices, the ownership of any interest in shares or stock of the corporation or interests in any trust or Registered Scheme-or otherwise.
(Change of Control ;or
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(including by making the margin positive or negative), or substituting a different indicator rate for the relevant indicator rate (except where the rate is a fixed rate).
(ii} on the date specified in the relevant advertisement in the local or national press or in the publication on NAB's website.
(b} NAB may debit the review fee from any account of a Borrower. The Borrower must pay to NAB immediately on demand any amount so debited.
Each Borrower must promptly notify NAB after it becomes aware that a Review Event has occurred.
(b} If agreement is reached, the Obligors must do all acts and execute all documents as NAB requires to document, or to protect, preserve or secure NAB's rights and interests under, such agreement.
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(i} cancel the whole or any part of a Facility whereupon it will be immediately cancelled; and
(ii} declare that all or any part of the Amount Owing is due and payable whereupon it will be due and payable within the Mandatory Prepayment Period.
(d} If the Borrowers fail to prepay all amounts payable under clause (c) within the Mandatory Prepayment Period, that failure will constitute an Event of Default and NAB may exercise any of its rights set out in clause 11.2 (Consequences of an Event of Default)
If any Facility is terminated or cancelled in full or in part or if any part of the Balance Owing in respect of any Facility is permanently prepaid or repaid or if any part of the Balance Owing in respect of any Facility becomes repayable before its stated maturity date for any reason and if at that time there are any treasury related transactions in existence between NAB and any Borrower (Open Positions) then:
(a} NAB may close out the Open Positions, by entering into opposite positions for the balance of the unexpired term, or by such other means as may be usual in the relevant market, and any such close out must be at market rates prevailing at the time;
(b} any Costs incurred by NAB in closing out Open Positions under clause (a) must be paid by the relevant Borrower to NAB immediately upon demand by NAB;
(c} any gain derived by NAB in closing out Open Positions under clause (a) will be credited to the relevant Borrower and set off against the Amount Owing by the relevant Borrower; and
(d} NAB will give the relevant Borrower reasonable particulars of the manner of
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close out of the Open Positions and the basis of calculation of any amounts payable by or to the relevant Borrower arising from that close out.
Each Borrower r:nust pay to NAB immediately upon demand all Taxes and reasonable Costs paid or payable by NAB of any nature incurred by NAB in connection with:
including:
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Without prejudice to clauses 12(b) and 14.3(b), each Obligor will be responsible for all of its own costs and expenses in connection with the Finance Documents and the transactions contemplated by those documents.
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withholding, unless required by law. costs.
p.m. in Sydney.
withholding, pay such amount in full 19. GST
to the appropriate Agency and
deliver to NAB a copy of the receipt (a) Unless otherwise specified, all amounts for the payment; and referred to in a Finance Document are
exclusive of GST.
amount which will result in NAB (b) If GST is or will be imposed on any receiving (after the deduction or Supply made by NAB under or in withholding) the full amount which it connection with a Finance Document to a would have received if no deduction Recipient, where any amount or
or withholding had been required. consideration (consideration) payable or
to be provided by the Recipient under the
exclusive consideration), NAB may:
a currency other than that in which it is (i) increase the consideration payable due: by an additional amount on account
of GST; or
received or recovered into the due (ii) otherwise recover from the currency (and if necessary convert Recipient an additional amount on
through other currencies) on such account of GST. day and at such rates as NAB
considers appropriate. NAB may (c) The additional amount on account of GST deduct from the amount it receives is to be calculated by multiplying the
or recovers its usual costs in GST-exclusive consideration for the connection with the conversion; and relevant Taxable Supply by the GST rate
prevailing at the time of the Taxable
amount of the due currency (d) NAB will issue the Recipient with a Tax obtained from the conversion after Invoice prior to seeking payment for the deducting conversion costs. relevant Supply.
(f) If NAB is debiting an amount from an account held by a Borrower, and that• amount is in a currency other than that of the account, NAB may: |
| (e) Each Recipient must pay NAB the amount of any loss or Costs incurred by NAB as a result of or in connection with NAB not receiving any additional amount |
|
| on account of GST. |
(i) convert the amount to be debited into the currency of the relevant | 20. | INCREASED COSTS |
account (and if necessary convert |
|
|
through other currencies) on such day and at such rates as NAB considers appropriate; and |
| (a) Subject to clause (c), each Borrower must, immediately upon demand, pay the amount of any Increased Costs |
|
| reasonably determined by NAB as |
(ii) debit from that account the amount |
| required to compensate NAB or any of its |
so converted, plus the costs of |
| Affiliates as a result of: |
conversion. |
|
|
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including any law with regard to capital adequacy, prudential limits, liquidity, reserve assets, banking or monetary controls or Tax.
means:
which is incurred or suffered by NAB or any of its Affiliates to the extent attributable to NAB or any of its Affiliates funding or performing its obligations under any Finance Document.
WARNING: Economic Costs can be high and may increase the amount owed. Borrowers can ask NAB at any time for an estimate of Economic Costs.
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notify the relevant Borrowers of the amount (if any) that is payable by them in accordance with NAB's calculation under clause 21.3. Borrowers must pay NAB the amount of any Economic Costs notified to them by NAB as payable by them under this clause 21. Borrowers must pay those notified Economic Costs immediately following their receipt of the notification of the Economic Costs payable.
An Economic Event is taken to have occurred if, at any time while a Yield Rate or an Interest Rate (other than a variable Interest Rate) applies to a Facility, a Facility Component, a Loan Account or a Drawing:
except to the extent that this occurs:
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(h} on the Expiry Date; or
NAB will determine Economic Costs by calculating a reasonable estimate of the Costs and losses incurred, or expected to be incurred, by NAB (including fees, charges and premiums) in connection with an Economic Event. The calculation of Economic Costs may incorporate the following:
(i} the interest rate used or applied by NAB when setting the Yield Rate or interest rate for the Facility or the relevant Facility Component; and
The calculated Costs and losses are then discounted back to the net present value at the rate determined by NAB at that date; or
(c} the liquidation of deposits or other funds, or the termination or reversing of any swap or option agreement or other agreement or arrangement entered into by NAB (either generally in the course of NAB's business or specifically in connection with this document) to fund or maintain the Facility or to hedge, fix or limit NAB's effective cost of funding in relation to the Facility.
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Each Borrower indemnifies NAB against any Costs reasonably incurred by NAB as a result of a failure by an Obligor to pay any amount due under a Finance Document on its due date in accordance with the terms of that Finance Document or in the relevant currency.
Each Borrower indemnifies NAB against, and must pay NAB on demand, any Costs and Taxes reasonably incurred or suffered by NAB as a result of:
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(c) information produced or approved by or | 25. | LIABILITY FOR REGULATORY EVENTS |
on behalf of an Obligor or any other |
|
|
member of a Group under or in connection with any Finance Document or the transactions contemplated by any Finance Document being or being alleged to be misleading or deceptive in any |
| (a) From time to time, the Services may be interrupted, prevented, delayed or otherwise adversely affected by a Regulatory Event. |
respect; |
| (b) To the extent permitted by law: |
any Obligor or with respect to the Obligor or any other person if an
transactions contemplated under any event described in clause (a)
Finance Document; occurs, irrespective of the nature or cause of that loss, and NAB has no
electronic form or otherwise) which it Obliger or NAB; and reasonably believes to be genuine,
correct and appropriately authorised; (ii) each Obligor releases NAB from all liability in connection with any loss
clause (a) occurs.
agreement, arrangement or transaction (c) To the extent that NAB's liability cannot entered into to hedge, fix or limit its be excluded, NAB's liability is limited to
effective cost of providing, funding or the cost of having the Service supplied
maintaining a Facility. again.
also set off any amounts payable by that considers appropriate or necessary in person under this document against any connection with any Regulatory Event or credit balance in those accounts. the Facilities or the Services and this may
result in information being transmitted
Guarantor irrevocably authorises NAB to
do anything necessary for the purpose set (e) Each Obliger agrees to provide
out in clause (a) including redeeming information to NAB about it, the Facilities, and/or appropriating all or any part of any the Services or any person connected account, deposit or other arrangement with it or the Facilities or the Services on between NAB and that Borrower or request, and to promptly procure any Cross-Guarantor under which NAB may consents NAB requires to give effect to be indebted to that Borrower or Cross- clause (d).
Guarantor, even if the balance on any
such account and the amounts payable 26. ANTI-MONEY LAUNDERING
under this document are not expressed in
the same currencies. (a) NAB may delay, block or refuse to process any payment or other transaction
it considers necessary or desirable for the knows or reasonably suspects that the purpose set out in clause (a) and clauses transaction or the application of its 18(e) and 18(f) will apply in relation to any proceeds will:
such conversion.
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including where the transaction or the application of its proceeds involves any entity or activity the subject of any applicable sanctions of any jurisdiction binding on NAB or its Affiliate, or the direct or indirect proceeds of unlawful activity.
Each Cross-Guarantor irrevocably and unconditionally jointly and severally:
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amount as if it was the principal obligor; and
Each of paragraphs (a), (b)(i), (b)(ii) and (c) is a separate obligation. None is limited by reference to the other.
This guarantee, undertaking and indemnity is a continuing guarantee, undertaking and indemnity and will extend° to the ultimate . balance of sums payable by any Obligor under the Finance Documents, regardless of any intermediate payment or discharge in whole or in part.
If any payment to or any discharge, release or arrangement given or entered into by NAB (whether in respect of the obligations of any Obliger or any security for those obligations or otherwise) is avoided or reduced for any reason (including as a result of insolvency, breach of fiduciary or statutory duties or any similar event):
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The obligations of each Cross-Guarantor under this clause will not be affected by an act, omission, matter or thing which, but for this clause, would reduce, release or prejudice any of its obligations under this clause (without limitation and whether or not known to it or NAB) including:
0) this document or any other Finance Document not being executed by or
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binding against any other Obliger or any other party.
References in clause 27.1 to obligations of an Obliger or amounts "due will include what would have been obligations or amounts due but for any of the above, as well as obligations and amounts due which result from any of the above. •
Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full, NAB may:
Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full and unless NAB otherwise directs, no Cross-Guarantor will:
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obligations under the Finance Documents:
If, in any form of administration of an Obligor (including liquidation, winding up, bankruptcy, voluntary administration, dissolution or receivership or any analogous process), a Cross-Guarantor receives any sum in respect of any indebtedness of any nature owed to it by the Obligor, it will hold on trust for NAB so much of that sum as does not exceed the amount which may be or become payable to NAB under or in connection with the Finance Documents. It will promptly pay it to NAB.
This guarantee, undertaking and indemnity is in addition to and is not in any way prejudiced by any other guarantee, undertaking and indemnity or security now or subsequently held by NAB.
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which are necessary or desirable to give effect to each Finance Document or a transaction contemplated by a Finance Document.
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Any such notice is effective from the time of delivery so that
dealt with separately from, any other rights and obligations of NAB under that Finance Document;
No Obligor may assign its rights or novate its obligations or otherwise deal with its rights and obligations under any Finance Document without NAB's prior written consent.
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precedent required to be delivered by an Additional Obligor) in relation to that Additional Borrower, each in form and substance satisfactory to NAB.
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(b} If NAB accepts and executes the Accession Letter and notifies the Borrower, the person becomes an Additional Security Provider with effect on and from the date specified in the Accession Letter and is bound by the terms of this document.
(b} If NAB (in its absolute discretion) accepts and executes the Resignation Letter and notifies the Borrower of its acceptance of the Resignation Letter, the Security Provider shall cease to be a Security Provider with effect on and from the date specified in the Resignation Letter and shall have no further rights or obligations
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as a Security Provider under the Finance Documents.
Delivery of an Accession Letter constitutes confirmation by the proposed Additional Obligor that the representations and warranties in this document are true and correct in relation to it as at the date of delivery as if made by reference to the facts and circumstances then existing.
For each Accession Letter or Resignation Letter, each Obligor for valuable consideration irrevocably appoints each Borrower to execute the Accession Letter or Resignation Letter on its behalf.
(a) Each party agrees that no party will disclose to an Interested Person, or any other person at the request of an Interested Person, any information of the kind described in section 275(1) of the PPSA unless allowed or required by law.
(b} Each Obligor agrees that it will not authorize the disclosure of any information of the kind described in section 275(1) of the PPSA.
(c) Each party agrees not to disclose information provided by the other party '(including the existence or contents of this document) except:
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for the purpose) by any electronic method approved by NAB for a specific purpose from time to time.
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be owed to NAB provided the receiving party is bound by an obligation of confidentiality;
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(i)
. (ii)
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given by making it available at NAB's website and notifying the Obliger that the information is available electronically (including by SMS or email); or
given by other electronic method or by making it available on a service provided by NAB.
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person who is considering contracting (directly or indirectly) with NAB or a Receiver in connection with this document, or anyone who invests in or otherwise finances or administers such a transaction, provided the receiving party is bound by an obligation of confidentiality;
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Obligors may withdraw their agreement to receive notices by electronic means by giving NAB notice.
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(d)
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under clause (a) or (b) is absolute and therefore none of the exceptions in this clause (c) apply to a disclosure under clause (a) or (b).
NAB agrees that each Borrower is providing its signed copy of this document
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the time it is actually received; and
except in the case of a communication to NAB, the time it is deemed to be received under clause (f).
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on the condition that NAB complies with its obligations of confidentiality under clauses (a) and (c) above.
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(f}
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Subject to clause (g), any communication or notification will be deemed to be received:
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(i)
(ii)
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if left at the recipient's address, at the time left at the relevant address;
if sent electronically to a Borrower to an email address or if made available at NAB's website and notified to an Obliger under sub clause (c) or if sent by another electronic method, at the time it was sent or when it was posted on a service provided by NAB;
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unless delivery or receipt is on a day which is not a Business Day or is after 4:00 p.m. (addressee's time) in which case it will be deemed to be received at
:00 a.m. on the following Business Day.
communication that NAB believes in good faith is from any of those persons.
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reasonably determines to be necessary in connection with a Facility.
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the account (taking into account any limit applicable to that account) is immediately payable by the Borrower when NAB asks. It is to the Borrower's benefit to pay this amount as soon as possible to minimize fees and interest (including default interest).
Each Borrower represents and warrants to NAB that either:
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(ct) it is a company listed on the ASX or it is a government entity or it holds an Australian Financial Services License to be a responsible entity or to provide custodial or depository services,
and accordingly each Borrower acknowledges that the Banking Code of Practice does not apply to this agreement or the facilities being provided under it.
36, GENERAL PROVISIONS
If, at any time, any provision of a Finance Document is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or enforceability of such provision under the law of that or any other jurisdiction will in any way be affected or impaired.
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document that expressly contemplates or permits the terms of this document to be varied unilaterally, at any time:
Each Finance Document may be executed in any number of counterparts, and if so, the counterparts taken together constitute one and the same instrument.
Each Obligor will comply with all conditions in any consent or waiver NAB gives under or in connection with a Finance Document. NAB will act reasonably in all the circumstances and in its legitimate business interests in determining such conditions and requirements.
NAB may exercise a right or remedy or give or refuse its consent under or in connection with a Finance Document reasonably after having regard to its legitimate business requirements.
NAB is not liable to any Obligor for any loss, liability or Costs caused by the exercise or attempted exercise of, or failure to exercise, or
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delay in exercising, a right or remedy under or in connection with a Finance Document, where:
Rights given to NAB, and an Obligor's obligations, under or in connection with a Finance Document, are not affected by any act or omission or any other thing which might otherwise affect them under law or otherwise.
The Obligors may have statutory rights and protections available to them under Australian · laws, including laws to protect small businesses from unfair contract terms.
However, to the extent permitted by law, each Finance Document prevails to the extent it is inconsistent with any law.
This document constitutes the entire agreement of the parties about its subject matter and supersedes all previous agreements, understandings and negotiations on the subject matter.
Each Obligor consents to NAB recording any telephone conversations between it and NAB in relation to any Facility that are customarily recorded in the finance industry or where the Obligor is notified prior to the commencement of the telephone conversation and such recordings being used for training and quality purposes and in any arbitral or legal proceedings.
Each Obligor agrees that if a payment or other transaction relating to the Amount Owing is void, voidable, unenforceable or defective for any reason or a related claim is upheld, conceded or settled (each an Avoidance), then even though NAB knew or should have known of the Avoidance:
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Finance Document will be what it would have been, and will continue, as if the payment or transaction the subject of the Avoidance had not occurred; and
This clause 36.13 survives any termination or full or partial discharge or release of any Finance Document.
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(ii) and (iii) to the term, the law would make the term void, the term is to be read down and construed as if it were varied, to the minimum extent necessary, so that the term is not void.
,These reading-down rules apply before the following additional reading-down and severance provision:
Each Obligor acknowledges that, except as expressly set out in a Finance Document:
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recommendation) by NAB or any of its advisers;
ANNEXURES ANNEXURE 1: VERIFICATION CERTIFICATE VERIFICATION CERTIFICATE To: National Australia Bank Limited (NAB) From: [insert name and ACN] (the Company) •
Dated: [insert date]
We, being [directors][a director and company secretary] of the Company [I, being the sole director of the Company] hereby certify as follows:
Except where otherwise defined, capitalised terms used in the Finance Agreement dated on or about the date of this certificate between the Company and NAB have the same meaning when used in this certificate.
1. SPECIMEN SIGNATURES
The following are the signatures of the persons appointed as Authorised Officers and attorneys of the Company for the purposes of the Finance Documents or who are otherwise authorised to . sign a Finance Document on behalf of the Company. • Authorised Officers | |
Signature of Authorised Officer | Signature of Authorised Officer |
Name: • | Name: |
Title: |
|
Attorneys |
|
Signature of Attorney Signature of Attorney Name: Name: Title: Title:
2. AUTHORISATIONS (a) Attached to this certificate marked "A" are true, complete and current copies of each [list Material Authorisations]. (b) Other than the documents listed above, no other Authorisations are necessary for the Company to enter into, observe its obligations under, and perform the transactions contemplated by, each Finance Document to which it is expressed to be a party. 3. SOLVENCY DECLARATION (a) As at the date of execution of each Finance Document the Company is solvent (as defined in section 95A(1) of the Corporations Act) and will not become insolvent (as defined in section 95A(2) of the Corporations Act) by entering into and complying with its obligations under each Finance Document. (b) The Company has at all times complied with its obligations under section 286 of the Corporations Act. •
|
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{c} To the best of our knowledge, no application or order has been made, no proceedings have been commenced, no resolutions have been passed or proposed in a notice of meeting and no other steps have been taken for:
{i} the winding up, dissolution or administration of the Company or of any Trust or Registered Scheme of which the Company acts as trustee or responsible entity, as the case may be; or
{ii} the Company entering into an arrangement, compromise or composition with or assignment of the benefit of its creditors or a class of them. •
Attached to this certificate marked "B" is [an original] [a true, complete and current copy] of a power of attorney which the Company is to use or has used to execute a Finance Document.
Attached to this certificate marked "C" is [a true, complete and current copy] of the most recent [insert details of Finance Statements] of the Company [and the Group].
Attached to this certificate marked "D" are [true, complete and correct copies] of the following Material Documents:
[insert list]
To the extent that any of these Material Documents has been provided to NAB prior to the date of this certificate, we certify that the copies provided are true, up-to-date and complete.
MULTIPLE DIRECTORS
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Signature of director Name of director {print} Date
120
Signature of director/company secretary Name of director/company secretary (print) Date
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SINGLE DIRECTOR
Signature of sole director and sole company secretary
Name of sole director and sole company secretary (print)
Date
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ANNEXURE 2: COMPLIANCE CERTIFICATE COMPLIANCE CERTIFICATE
To: National Australia Bank Limited (NAB) From: [insert name and ACN] (the Company)
Dated: [insert date]
Finance Agreement dated [insert date] (the Agreement)
MULTIPLE AUTHORISED OFFICERS
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Signature of Authorised Officer Name (print)
Date
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Signature of Authorised Officer Name (print)
Date
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ANNEXURE 3: DRAWDOWN NOTICE DRAWDOWN NOTICE
To: National Australia Bank Limited (NAB) From: [insert name and ACN] (the Company)
Dated: [insert date]
Finance Agreement dated [insert date] (the Agreement)
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Proposed Drawdown Date:
Facility for Drawing:
[Currency:] Amount: Interest Period:
127
] (or, if that is not a Business Day, the next Business Day)
[Insert details of Facility]
] or, if less, the Available Facility
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Proceeds to be [Account] credited to:
129
Beneficiary: Agreement: Amount:
Termination Date:
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[Name, ABN/ACN and address]
$[ ]
[ ]
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We acknowledge that the Bank Guarantee(s) above will be issued under, and will be subject to the terms of, the Bank Guarantee Facility under the Agreement. NAB will continue to be indemnified in accordance with the terms of that Bank Guarantee Facility in respect of any amount it pays to a Beneficiary under the Bank Guarantee(s) requested.
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Yours faithfully
Authorised Officer
[Company on behalf of] [name of relevant Borrower]
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ANNEXURE 4: FORM OF ACCESSION LETTER
To: National Australia Bank Limited (NAB)
From: [Additional Obligor] and [Borrower] for itself and on behalf of each other person who is an Obligor at the date of this letter
Date: [insert date]
Finance Agreement dated [Insert date] (the Agreement)
We refer to the Finance Agreement. This is an Accession Letter. Terms used in the Finance Agreement shall have the same meaning in this Accession Letter unless given a different meaning in this Accession Letter.
[[Additional Obligor] agrees to become an Additional Borrower in respect of [all Facilities]/[specify relevant Facilities] and to be bound by the terms of the Finance Agreement as an Additional Borrower pursuant to Clause 29.3 (Additional Borrowers) of the Finance Agreement.]
[[Additional Obligor] agree s to become an Additional [Cross-Guarantor]/[Security Provider] and to be bound by the terms of the Finance Agreement as an Additional [Cross-Guarantor]/[Security Provider] pursuant to [Clause 29.4 (Additional Cross-Gua1antors}]l[Clause 29.5 (Additional Security Providers)] of the Finance Agreement.]
[Additional Obligor] agrees to do all things that are required under the Finance Agreement to be done in connection with becoming an Additional [Borrower]/ [Cross-Guarantor]/ [Additional Security Providers].
[Each of the following is specified as a Security Document for purposes of the Finance Agreement:
[Insert details of new Security Documents including Facilities to be secured]
The details for service of communications to [Additional Obligor] are as follows: Address:
Email:
Attention:
This Accession Letter is governed by the laws of Victoria. This Accession Letter may be executed in any number of counterparts and, if so, the counterparts taken together constitute one and the same instrument. ,
This Accession Letter is entered into as a deed.
[Borrower] [Additional Obligor]
This Accession Letter is accepted by NAB and the accession date is confirmed as [*].
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Executed on behalf of National Australia Bank Limited by its Attorney who holds the position of ) Level Attorney under Power of Attorney dated
1 March 2007 in the presence of: )
Signature of Witness Signature of Attorney
Name of Witness (print) Name of Attorney
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ANNEXURE 5: FORM OF RESIGNATION LETTER
To: National Australia Bank Limited (NAB)
From: [Resigning Obligor] and [Borrower] for itself and on behalf of each other person who is an Obliger at the date of this letter
Dated: [insert date]
Finance Agreement dated insert date] (1he Agreement)
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[resigning Obligor]
By:
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[Borrower]
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This Resignation Letter is accepted by NAB and the resignation date is confirmed as [*]. Executed on behalf of National Australia Bank
Limited by its Attorney who holds the position of ) Level Attorney under Power of Attorney dated
1 March 2007 in the presence of: )
Signature of Witness Signature of Attorney
Name of Witness (print) Name of Attorney
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ANNEXURE 6: CONDITIONS PRECEDENT REQUIRED TO BE DELIVERED BY AN ADDITIONAL OBLIGOR
(f) (process agent appointment) Evidence of the acceptance of appointment of a process agent located in Australia for the Additional Obligor, if the Additional Obligor is incorporated or located outside Australia.
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ANNEXURE 7: PRIVACY STATEMENT
This statement outlines the manner in which any Personal Information that will be or has been collected from and/or about you in connection with the Agreement (and any transactions contemplated under it) may be used and disclosed by the parties described in this statement
In this statement:
Affilia18 means a related body corporate of NAB.
Agreement means this document.
Personal Information means information or an opinion about an identified individual or an individual who is reasonably identifiable.
You includes any person who is an employee of or holds office in an Obligor.
NAB may collect and use your Personal Information:
(ij to consider any concerns or complaints raised by an Obligor against NAB and for to manage any legal action involving NAB; and
NAB may collect your Personal Information not only directly from you but also from third parties such as any Obligor.
NAB may disclose Personal Information to:
(a) any Affiliate of NAB;
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(b)
(c)
(d)
(e) (ij (g)
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regulatory bodies, government agencies, Jaw enforcement bodies and courts;
participants in payments-systems (including payment organizations and merchants) and other financial institutions;
an Obligor's legal representatives or anyone else acting for an Obligor in connection with the Facilities; any provider of a guarantee or other credit support for the Obligors' obligations to NAB;
parties to whom NAB is authorised or required by law or court tribunal order to disclose information;
any professional advisors or service providers of NAB who are under a duty of confidentiality to keep such information confidential;
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If an Obligor does not provide NAB with some or all of the Personal Information requested, NAB may be unable to provide the Obligors with any product or service.
In collecting and using your Personal Information and making the disclosures described in clauses 1 and 2, NAB may disclose information to recipients located outside Australia, including recipients who are not established in or not trying on business in Australia. This may include (but is not limited to) recipients in countries named in NAB's privacy policy.
The privacy policy of NAB is available on its website. Each privacy policy contains information about the way you may access and seek correction of your Personal Information and how to make a privacy related complaint.
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