Unsecured Convertible Note Agreement

Transcription

1 Unsecured Convertible Note Agreement APA Financial Services Limited Trustees Australia Limited as trustee for the Australian Dairy Farms Trust Trustees Australia Limited as trustee for the Interim Facility Trust

2 Table of Contents 1 DEFINED TERMS AND INTERPRETATION ACKNOWLEDGEMENT CONVERTIBLE NOTE TRANSFER OF NOTES INTEREST CONVERSION BY THE NOTEHOLDER REORGANISATION EVENT REDEMPTION BY THE GROUP REPAYMENT ON THE REPAYMENT DATE REPRESENTATIONS AND WARRANTIES INDEMNITY AND LIEN DEFAULT REPLACEMENT OF CONVERTIBLE NOTE CERTIFICATES GENERAL AB: Page i

3 Details Date: 20 July 2014 Parties Name APA Financial Services Limited ABN Short form name Notice details Company Level 1, 41 Edward Street Brisbane, Queensland Attention: The Company Secretary Facsimile: Name Trustees Australia Limited as responsible entity for the Australian Dairy Farms Trust ABN Short form name Notice details Trust Level 1, 41 Edward Street Brisbane, Queensland Attention: The Company Secretary Facsimile: Name Trustees Australia Limited as trustee for the Interim Facility Trust ACN Short form name Notice details Noteholder Level 1, 41 Edward Street Brisbane, Queensland Attention: The Company Secretary Facsimile: AB: Page 1

4 Background A. The Noteholder has, at the request of the Group, provided finance to the Trust on the terms of the Interim Funding. B. As at 30 June 2014 the amount owing under the Interim Funding was $3,500, C. The Group has agreed to repay the amount owing under Interim Funding (as at the Completion Date) through, amongst other things, the issue of the Convertible Note. AB: Page 2

5 Agreed Terms 1 DEFINED TERMS AND INTERPRETATION 1.1 Defined terms In this agreement: ASIC ASX Business Day CBA Loan Company Completion Completion Date Conversion Amount Conversion Date Conversion Notice Conversion Price Conversion Securities Convertible means Australian Securities and Investments Commission. ASX Limited or the Australian Securities Exchange (as the context requires). has the same meaning given in the Listing Rules or, where the reference relates to trading on ASX, the actual days on which ASX is open for such trading. the secured limited recourse commercial finance facility provided by the Commonwealth Bank of Australia to the Trust dated on or about Completion. means APA financial Services Limited (ABN ) to be renamed Australian Dairy Farms Limited. has the meaning given in the Listing Agreement. means the date Completion occurs under the Listing Agreement. has the meaning given in clause 6.3. has the meaning given in clause 6.3(c). means a notice given under clause 6.1 in the form set out in Annexure A. means for each Stapled Security, $0.20. has the meaning given in clause 6.3. means the unsecured convertible notes created on the terms of AB: Page 3

6 Note Convertible Note Certificate Corporations Act Events of Default Group GST Quarter and issued by the Group under this agreement. means a convertible note certificate in the form set out in Annexure B issued by the Group to the Noteholder under clause 3.1, 6.4(c)(ii) or 13. means the Corporations Act 2001 (Cth). means any of the events referred to in clause 12.1 as an event of default. means the Company and the Trustee (in its capacity as trustee of the Trust). has the same meaning as in the A New Tax System (Goods and Services Tax) Act means each period of three calendar months ending on 30 June, 31 October, 31 December and 31 March each year. Interest Payment Date means: (c) (d) the last day of each Quarter after the Completion Date; if a Convertible Note is converted, the Conversion Date; or if a Convertible Note is redeemed, the Redemption Date; or if a Convertible Note is repaid, the Repayment Date. Listing Agreement Listing Rules Interim Funding Balance means the listing agreement between dated 28 February 2014 between the Company, Trustees Australia, as responsible entity for the Australian Dairy Farms Trust (previous known as Australian Dairy Farms Trust) ABN , DFI Management Pty Limited and Dairy Farm Investments (Brucknell) Limited (ARBN: ) (as varied from time to time). means Listing Rules of ASX as amended from time to time. means all money owing by the Trust to the Noteholder at Completion under the Interim Funding. AB: Page 4

7 Interim Funding Interim Facility Trust Principal Money Redemption Date Redemption Notice Repayment Date Share Stapled Security means the interim funding provided by the Noteholder as trustee of the Interim Facility Trust. means the DFIT Interim Facility Trust with Trustees Australia Limited as trustee. means the total amount owing under a Convertible Note plus any interest which has accrued under clause 5.1 but has not been paid. means the date on which the Convertible Notes are redeemed in accordance with clause 8. means a notice in the form set out in Annexure C. means the date which is two years from the Completion Date, or such other date as the parties agree. means a fully paid ordinary share in the capital of the Company. means a stapled Share and Unit. Trust means the Australian Dairy Farm Trust (ARSN ). Unit means a fully paid unit in the Trust. 1.2 Construction Unless expressed to the contrary: (c) (d) (e) if the date on or by which any act must be done under this agreement is not a Business Day, the act must be done on the next Business Day; words importing the singular include the plural and vice versa; if a word or phrase is defined cognate words and phrases have corresponding definitions; a covenant, agreement, representation or warranty expressed or implied in which more persons than one covenant, agree represent or warrant will bind such persons and every two or more of them jointly and each of them severally; a reference to: AB: Page 5

8 (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) (ix) (x) a person includes its legal personal representatives, successors and assigns; a right includes a benefit, remedy, discretion, authority or power; an obligation includes a warranty or representation and a reference to a failure to observe or perform an obligation includes a breach of warranty or representation; this agreement includes all schedules and annexures referred to in it; a party includes a reference to that party s successors or personal representatives (as the case may be) assigns and transferees; the word person includes a corporation; words importing a masculine gender will include the feminine and neuter genders; a statute includes all statutes amending or consolidating the statutes referred to; $ means Australian dollars; and time is a reference to time in Melbourne, Victoria. 1.3 Headings Headings do not affect the interpretation of this agreement. 2 ACKNOWLEDGEMENT The parties each acknowledge that, as at 30 June 2014, the Trust is indebted to Interim Facility Trust for $3,500, CONVERTIBLE NOTE 3.1 Issue of Convertible Note On the Completion Date the Group will issue the Convertible Notes to the Noteholder and deliver to the Noteholder the number of Convertible Note Certificates calculated as follows: Number of Convertible Notes = 10,000 AB: Page 6

9 3.2 Convertible Note Unsecured The Convertible Notes will be unsecured and any Noteholder will rank equally with all other unsecured creditors of the Group. 3.3 Voting Rights The Convertible Notes will not provide for any voting rights at meetings of security holders of the Group. 3.4 Listing of Convertible Note The Group will not apply for the Convertible Notes to be quoted on the ASX. 4 TRANSFER OF NOTES 4.1 Transfer Subject to the Corporations Act, a Convertible Note may be transferred: (c) by written transfer instrument in any usual or common form or in any other form approved by the Group; in circumstances that do not require disclosure under the Corporations Act or any other applicable law; and to a person or entity that has executed and delivered to the Group an undertaking to observe, perform and be bound by the terms of this agreement. 4.2 Transfers must be executed A written transfer instrument must be executed by the transferor, the transferee and the Group. 4.3 Convertible Note Certificates A written transfer instrument must be forwarded to the Group for registration together with the Convertible Note Certificates for the Convertible Notes to be transferred. 4.4 Company must register transfer Subject to compliance with any relevant statute relating to laws (including in respect of tax), the Group must register the transfer and issue a new Convertible Note Certificate to the transferee for the number of Notes comprised in the transfer and if applicable an amended or replacement Convertible Note Certificate representing the balance of Convertible Notes held to the transferror. AB: Page 7

10 5 INTEREST 5.1 Interest Rate Each Convertible Note will bear interest at the rate of 2% above the rate paid by the Group under the CBA Loan per annum, from the date of its issue until the date the Convertible Note is converted into Stapled Securities or repaid in full in accordance with this agreement. Interest: (i) (ii) accrues daily; and subject to all applicable laws and the Listing Rules, will be paid by the Group to the Noteholder in cash or Stapled Securities (at an issue price equal to the Conversion Price) at the Group s election. (c) The Group must pay interest in arrears: (i) (ii) within five Business Days of the Interest Payment Date (other than a Conversion Date, Redemption Date or Repayment Date); or on the Conversion Date, Redemption Date or Repayment Date (as the case may be). 6 CONVERSION BY THE NOTEHOLDER 6.1 Conversion into Stapled Securities A Noteholder may convert the whole of a Convertible Note into Stapled Securities at the Conversion Price at any time on or before the Repayment Date by giving to the Group a Conversion Notice and a Convertible Note Certificate (or such other evidence of title as to ownership of the Convertible Note as is acceptable to the directors of the Group). 6.2 Number of Share on conversion The number of Stapled Securities to be issued pursuant to a Conversion Notice, will subject to clause 7, be calculated as follows: Number of Stapled Securities to be issued = where: A = the Principal Money of the total number of Notes the subject of the relevant Conversion Notice; and B = the Conversion Price. AB: Page 8

11 If the calculation under this clause results in an entitlement to a number of Stapled Securities which includes a fraction of a Stapled Security, the fraction will be rounded upwards. 6.3 Conversion Notice The Conversion Notice will be in the form set out in Annexure A and will specify: (c) the number of Notes the subject of the relevant Conversion Notice (Conversion Amount); the number of Stapled Securities to be issued under the conversion (Conversion Securities); and the date of the conversion, which must not be earlier than 7 days after the date the Conversion Notice is delivered to the Group (Conversion Date). 6.4 Allotment and Issue of Stapled Securities Upon receipt of a valid Conversion Notice the Group will within 5 Business Days: (c) allot and issue to the Noteholder on the Conversion Date the Conversion Securities and an uncertified holding statement for the Conversion Securities (upon the occurrence of which, the Conversion Amount is deemed repaid); subject to clause 6.4(c), apply for quotation on ASX of the Conversion Securities issued to the Noteholder and do all things reasonably necessary to procure quotation of the Conversion Securities; and either: (i) (ii) to the extent that it is permitted to do so, issue a notice under sections 708A(5)(e) and 1012DA(5)(e) of the Corporations Act that complies with the requirements of sections 708A(6) and 1012DA(6) of the Corporations Act including without limitation, section sections 708A(6) and 1012DA(6); or in the event the Group fails to comply with clause 6.4(c)(i), lodge a prospectus and product disclosure statement lodged under sections 708A(11) and 1012DA(11) with ASIC as soon as reasonably practicable after the following the issue of the Conversion Securities. The Noteholder acknowledges that until a notice is given under sections 708A(5)(e) and 1012DA(5)(e) or a prospectus and product disclosure statement is lodged under sections 708A(11) and 1012DA(11), Stapled Securities issued on conversion may only, within 12 months of issue, be offered for sale in circumstances that do not require disclosure. AB: Page 9

12 6.5 Ranking of Stapled Securities Stapled Securities issued to the Noteholder on conversion of the Convertible Note will rank equally in all respects with all other Stapled Securities on issue from the allotment date and the Noteholder will be entitled to all dividends and other distributions given to holders of Stapled Securities, the record date or dates for which falls on or after the relevant Conversion Date. 7 REORGANISATION EVENT If there is a reorganisation of the capital of the Group (including without limitation a consolidation, subdivision, reduction, pro rata bonus issue or return), each Convertible Note and the Conversion Price will, subject to the Listing Rules, be reorganised in the same manner and way as the Stapled Securities, so that: (c) the value of a Convertible Note is not adversely affected by the reconstruction; the Noteholder is not conferred with any additional benefits which are not also conferred on the holders of Stapled Securities (subject to the same provisions with respect to rounding of entitlements as sanctioned by the meeting of holders of Stapled Securities approving the reconstruction of capital); and subject to clause 7, in all other respects the terms for the conversion of a Convertible Note will remain unchanged. 8 REDEMPTION BY THE GROUP 8.1 Redemption by Group The Group may redeem one or more Convertible Notes by serving a Redemption Notice on the Noteholder a minimum of fifty Business Days notice prior to the Redemption Date stated in the Redemption Notice. 8.2 Right to convert A Noteholder may, in the event a Redemption Notice is served on it, within forty Business Days of a Redemption Notice being served on the Noteholder serve a Conversion Notice on the Group. A Redemption Notice will lapse if a Conversion Notice is served under clause 8.2. AB: Page 10

13 8.3 Redemption amount Subject to clause 8.2, Convertible Notes the subject of redemption are redeemable for an amount in cash equal to $10,000 for each Convertible Notes the subject of a Redemption Notice plus any interest accrued or payable, and the Group must pay to the Noteholder this amount within 5 Business Days after the period under clause 8.2 to serve a Conversion Notice expires. 9 REPAYMENT ON THE REPAYMENT DATE If at 5.00pm on the Repayment Date, any Convertible Note has not been converted into Stapled Securities or repaid on full, then within 5 Business Days after the Repayment Date, the Group will pay to the Noteholder the Principal Amount. 10 REPRESENTATIONS AND WARRANTIES 10.1 Mutual representations and warranties The parties represent and warrant to the other that subject to the terms of this agreement: (c) (d) they have the power to enter into and perform its obligations under this agreement; they have taken all necessary action to authorise the execution of this agreement in accordance with its terms, and that execution does not require any consent or approval of any person which has not already been obtained; this agreement constitutes legal, valid and binding obligations of the party fully enforceable in accordance with its terms; and the execution, delivery and performance of the provisions by the party of this agreement does not and will not violate any treaty, law, regulation, Listing Rule, authorisation, judgment, ruling, order, consent or decree of any government agency binding on the Group or the constitution of the Company or the Trust Noteholder s representations and warranties The Noteholder represents and warrants to the Group that subject to the terms of this agreement: the Noteholder agrees to be bound by the constitutions of the Group upon the issue of Stapled Securities to the Noteholder under or as a result of this agreement; AB: Page 11

14 (c) (d) (e) the Noteholder has conducted all due enquiries and investigations into the Group and has obtained financial, business, tax and legal advice in respect of entering into this agreement, and has decided to enter into this agreement based on its own enquiries and investigations and without reliance on any representations or information provided by the Group or its officers; neither this agreement nor the issue of Stapled Securities under or as a result of it requires disclosure by reason of section 708(8) of the Corporations Act and because the Noteholder is not a retail client (as defined in the Corporations Act); the Convertible Notes are issued without disclosure and may only be offered for sale in circumstances that do not require disclosure under the Corporations Act; and Stapled Securities subscribed for by the Noteholder under or as a result of this agreement are done so as principal and not for the purposes of selling or transferring them or granting, issuing or transferring interests in or options or warrants over them to any other party or parties Survival The representations and warranties referred to in clauses 10.1 and 10.2 survive the termination of this agreement Reliance The parties acknowledge that they have entered into this agreement in reliance on the representations and warranties referred to in this clause INDEMNITY AND LIEN Where in consequence of: (i) (ii) (iii) (iv) the death of a Noteholder; the non-payment of any tax payable by a Noteholder; the non-payment of any stamp or other duty by the legal personal representatives of a Noteholder or his estate; or any other act or thing in relation to a Note or a Noteholder; any law for the time being of any country or place, in respect of that Convertible Note, imposes or purports to impose any liability of any nature whatever on the Group to make any payment to any governmental authority, the Group: AB: Page 12

15 (v) (vi) is indemnified by the Noteholder and his legal personal representatives for that liability and any money paid by the Group in respect of that liability may be recovered by action from that Noteholder or the Noteholder's legal personal representatives as a debt due to the Group; and has a lien in respect of money on the Convertible Notes held by the Noteholder or his legal personal representatives. Nothing in this clause 11 prejudices or affects any right or remedy which any law may confer or purport to confer on the Group. 12 DEFAULT 12.1 Default by the Group Each of the events referred to in this clause 12 is an Event of Default, whether or not the cause is beyond the control of the Group or of any other person: (c) (d) (e) (f) where the Noteholder is Trustees Australia, Trustees Australia is removed as responsible entity of the Trust; a receiver, manager, receiver and manager, trustee, administrator, controller or similar officer is appointed in respect of the Group; a liquidator or provisional liquidator is appointed in respect of the Group; if the Group defaults in fully performing, observing and fulfilling any provision of this agreement, provided that in the case of a default capable of remedy, that default has not been remedied within 20 Business Days of the occurrence of such default; this agreement is, becomes or is claimed by the Group to be, void, voidable or unenforceable in whole or in part or in breach of the Listing Rules; and subject to the terms of this agreement, at any time it is or becomes unlawful for the Group to perform any of its obligations under this agreement Repayment on Default Subject to clause 12.1(d), if an Event of Default occurs, any money owing by the Group under this agreement will be paid to the Noteholder within 5 Business Days of the Noteholder issuing a written notice to the Group requiring repayment of such money. AB: Page 13

16 13 REPLACEMENT OF CONVERTIBLE NOTE CERTIFICATES 13.1 Worn or defaced Convertible Note Certificate If any Convertible Note Certificate becomes worn out or defaced then upon its production to the Group it may cancel the same and issue a new Convertible Note Certificate in lieu thereof Lost or destroyed Convertible Note Certificate If a Convertible Note Certificate is lost or destroyed then upon proof thereof to the satisfaction of the Group and upon such indemnity or advertisement (or both) as the Group may require being given or published, a new Convertible Note Certificate in lieu thereof will be given to the Noteholder. The cost of any advertisement and indemnity must be paid by the Noteholder Cancellation of Convertible Note Certificate Any Convertible Note Certificate that is returned to the Group in connection with the conversion or transfer of that Convertible Note must be cancelled by the Group and any balance remaining after the transfer must be reissued as a replacement Convertible Note Certificate. 14 GENERAL 14.1 GST If GST is imposed on any supply under or in connection with this agreement, then the Group will be responsible for payment of such GST, provided that the Group has received a valid tax invoice in respect of the particular supply Notices Any notice or other communication which must be given, served or made under or in connection with this agreement must be in writing, signed by an authorised representative of the sender and will be deemed to have been duly given, served or made if it is delivered or posted by prepaid post to the address of the party detailed in this agreement, or sent by facsimile on the number set out in this agreement When Notice is received Notice is to be regarded as being given by the sender and received by the addressee: (i) if by delivery in person, when delivered to the addressee; AB: Page 14

17 (ii) (iii) if by post (which posting must be by pre-paid security post), 2 Business Days from and including the date of posting to the addressee; and if by facsimile transmission: (A) (B) (C) on the date the notice or communication is transmitted in its entirety by a facsimile machine; and that facsimile machine produces a transmission report which indicates that the facsimile was sent in its entirety to the facsimile number of the addressee; and but if the delivery or transmission by facsimile is on a day which is not a Business Day or is after 5.00pm (addressee s time) it is to be regarded as being given at 9.00am (addressee s time) on the next succeeding Business Day. A Notice can be relied upon by the addressee, and the addressee is not liable to any other person for any consequences of that reliance if the addressee believes it to be genuine, correct and authorised by the sender Severability Any provision of this agreement which is illegal, void or unenforceable is only ineffective to the extent of that illegality, voidness or unenforceability, without invalidating the remaining provisions Further Assurances The parties will promptly do and perform all further acts and execute and deliver all further agreements required by law or reasonably requested by the other party, to establish, maintain and protect the respective rights and remedies of the other party, and to carry out and affect the intent and purpose of this agreement General costs 14.7 Duty The parties will be responsible for their own legal fees, costs and disbursements in connection with the preparation, negotiation and execution of this agreement and any subsequent consent, agreement waiver, amendment to, or discharge of this agreement. The Group will pay all stamp duty, transaction, registration and similar taxes, including fines and penalties, financial institutions duty and debits tax which may be payable to or required to be paid by any appropriate authority, or determined to be payable in connection with the execution, delivery, performance or AB: Page 15

18 enforcement of this agreement, or any payment receipt or other transaction contemplated by this agreement Governing Law This agreement is governed by and is to be construed in accordance with the laws of Victoria. Each party irrevocably and unconditionally submits to the nonexclusive jurisdiction of the Supreme Court of Victoria and all courts competent to hear appeals from that court Entire Agreement This agreement constitutes the entire agreement of the parties with respect to its subject matter and replaces all other agreements with respect thereto Counterparts This agreement may be executed in any number of counterparts (including by way of facsimile) each of which will be deemed for all purposes to be an original and all such counterparts taken together will be deemed to constitute one and the same instrument. AB: Page 16

19 Signing Page Executed as a deed: Executed by APA Financial Services Limited in accordance with section 127 of the Corporations Act 2001 (Cth) Directors Signature Secretary/Director Signature... Adrian Rowley... Jerome Jones Name of Director (Print) Name of Secretary/Director (Print) Executed by Trustees Australia Limited in accordance with section 127 of the Corporations Act 2001 (Cth) Directors Signature Secretary/Director Signature... Michael Hackett... Nathan Leman Name of Director (Print) Name of Secretary/Director (Print) AB: Page 17

20 ANNEXURE A FORM OF CONVERSION NOTICE CONVERSION NOTICE Australian Dairy Farm Group (Group) TO: The Directors Australian Dairy Farm Group I/we, [ ] of [ ] being registered as the holder of the Convertible Note give notice that I/we wish to convert the Convertible Note in accordance with the terms of its issue and as set out below. Number of Convertible Notes to be converted: Principal Money of the total number of Notes the subject of this Conversion Notice Number of Stapled Securities to be issued: [ ] [ ] [ ] Conversion price: $0.20 Date of conversion (which may not be earlier than seven days after the date this Notice is delivered to the Group): [ ] I/we agree to accept the Stapled Securities to be issued on conversion of the Convertible Note subject to the terms of the Constitutions of the Group. Terms used in this notice have the same meanings as in the Unsecured Convertible Note Agreement dated [ ] and executed between the Group and the Noteholder. Dated: Executed by Trustees Australia Limited (ACN: ) in accordance with section 127 of the Corporations Act 2001 (Cth): Directors Signature Secretary/Director Signature Name of Director (Print) Name of Secretary/Director (Print) AB: Page 18

21 ANNEXURE B - FORM OF CONVERTIBLE NOTE CERTIFICATE CONVERTIBLE NOTE CERTIFICATE ISSUE OF [ ] UNSECURED CONVERTIBLE NOTES OF $[10,000] EACH (Notes) Australian Dairy Farm Group (Group) Certificate Number: [ ] THIS IS TO CERTIFY that Trustees Australia Limited (ACN ) as trustee for the Interim Facility Trust (Noteholder) is the registered holder of a Convertible Note on the terms specified below which was issued on [ ]. The Convertible Note confers on the Noteholder the rights, power and privileges and will be subject to the terms and conditions as set out in the Unsecured Convertible Note Agreement between the Group and the Noteholder dated [ ] (Agreement). Conversion Price: $0.20 Repayment Date: Dated: [Insert the date which is two years from the Completion Date.] [ ] Executed by APA Financial Services Limited in accordance with section 127 of the Corporations Act 2001 (Cth) Directors Signature Secretary/Director Signature Name of Director (Print) Name of Secretary/Director (Print) Executed by Trustees Australia Limited in accordance with section 127 of the Corporations Act 2001 (Cth) Directors Signature Secretary/Director Signature Name of Director (Print) Name of Secretary/Director (Print) AB: Page 19

22 ANNEXURE C - NOTICE OF REDEMPTION OF NOTES BY COMPANY To: Trustees Australia Limited APA Financial Services Limited and Trustees Australia Limited (as trustee of the Australian Dairy Farm Trust gives notice, under clause 8 of the Unsecured Convertible Note Agreement, of the exercise of its right to redeem [number] Convertible Notes included in your Convertible Note Certificate having a combined face value of $[combined face value (excluding accrued interest)] into cash on the Redemption Date. The Redemption Date for this Notice is 00/00/0000 Executed by APA Financial Services Limited in accordance with section 127 of the Corporations Act 2001 (Cth) Directors Signature Secretary/Director Signature Name of Director (Print) Name of Secretary/Director (Print) Executed by Trustees Australia Limited in accordance with section 127 of the Corporations Act 2001 (Cth) Directors Signature Secretary/Director Signature Name of Director (Print) Name of Secretary/Director (Print) AB: Page 20