Debenture Charge - Bank of New Zealand and Total Energy Systems Ltd.
Bank of New Zealand
A.R.B.N. 000 000 288
[This Security must be registered with the Australian Securities Commission
within 45 days of its date.]
DEBENTURE CHARGE
Name of Customer: TOTAL ENERGY SYSTEMS LIMITED ACN 010 876 150
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Date:___________________________________________________________
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THIS DEED made the _____ day of ______________ 19______
BETWEEN The Person(s) described in Item 1 of the Schedule (hereinafter
referred to as the "Customer") of the one part
AND BANK OF NEW ZEALAND (A.R.B.N. 000 000 288) (hereinafter referred to as
the "Bank") of the other part
WITNESSES that for valuable consideration received, the Customer COVENANTS AND
AGREES with the Bank and it is HEREBY DECLARED as follows:
1. INTERPRETATION
(1) Definitions
The Customer agrees that in this Security, unless the context Otherwise
requires:
"ASC LAW" has the same meaning as it has in the Corporations Act of the
State or Territory named in Item 4 of the Schedule or, if there is no State
or Territory so named, has the same meaning as it has in the Corporations
Act of New South Wales;
"ATTACHMENT NOTICE" means a notice pursuant to Section 255 or Section 218
of the Income Tax Assessment Act 1936 (Cth.) or any analogous process
pursuant to a similar provision of any other law (whether Federal, State,
of a Territory or of a foreign country or any of its, political
subdivisions) in respect of unpaid taxes or other statutory charges payable
by or levied on or assessed or assessable against the Customer or any
property or assets of the Customer;
"BANK" includes its successors, transferees and assigns;
"BANKING DAY" means in relation to any payment, a day on which the Bank is
open for business in the place where payment is required to be made;
"CORPORATIONS LAW" has the same meaning as it has in the Corporations Act
of the State or Territory named in Item 4 of the Schedule or, if there is
no State or Territory so named. has the same meaning as it has in the Act
of New South Wales;
"CUSTOMER" when only one person is named as the Customer includes the
Customer its successors and assigns and when two or more persons are named
as the Customer it includes each of those persons severally and any two or
more of them jointly and each of their respective successors. and assigns
and a reference to the Customer includes a reference to any one or more of
the persons named as the Customer;
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"INTELLECTUAL PROPERTY" means all copyrights, patents, designs and
inventions and fees, royalties and other rights of every kind deriving from
copyright. patents, designs and inventions now or at any time in the future
belonging to the Customer;
"LAW" means common law equity statute law and subordinate legislation;
"LEASE" (whether as a noun or verb) includes licence or license;
"MONTH" means calendar month;
"MONEYS SECURED" has the meaning ascribed to that expression by Clause 2(3)
as that meaning may be extended by Clause 26(7);
"MORTGAGED PROPERTY" means all the undertaking, property, rights and assets
for the time being and from time to time charged in favour of the Bank by
this Security or intended so to be and references to the "Mortgaged
Property' include a reference to any part or parts thereof;
"OFFICER OF THE BANK" means and includes every Bank employee whose title
includes the word"Manager" and every Bank employee who is occupying an
office the title of which includes the word"Manager";
"PERMITTED PRIOR CHARGE" means a mortgage, charge, pledge, lien or other
security created or permitted to subsist with the prior written consent of
the Bank and in accordance with and subject to such conditions as the Bank
may attach to such consent, including any referred to in Item 2 of the
Schedule;
"RECEIVER" includes a receiver and manager;
"SECURITY" includes a guarantee and an indemnity;
"SECURITY INSTRUMENTS" includes bills of exchange promissory notes drafts
cheques bills of lading warrants stock warrants bond warrants storage
warrants contracts contracts of purchase contracts of sale certificates
certificates of title title deeds leases licences stock shares scrip stock
certificates scrip for shares certificates for shares wheat certificates
notes debentures debenture stock inscribed stock bonds options and rights
to acquire any thereof receipts railway receipts transmission receipts term
and call deposit receipts liens bills of sale mortgages delivery orders
assignments life policies marine policies policies of insurance in respect
of
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buildings erections plant machinery stock in trade or other property
savings certificates grants letters of credit and all deeds documents
instruments writings and evidence of ownership of or interest in or
security over real or personal property;
"SUBSIDIARY" has the same meaning as in the Corporations Law;
"SURETY" includes:
(a) any person (other than the customer) who is liable whether alone or
jointly, or jointly and severally for payment to the Bank of the
Moneys Secured or any part thereof; and
(b) except in Clause 3(t)(ii) where there is more than one Customer each
other of the Customers and in respect of the obligations given by any
two or more (but not all) of the Customers each other of the
Customers;
"THIS SECURITY" includes the Schedule;
"TORRENS STATUTE" means such of the Transfer of Land Act 1958 (Vic), the
Real Property Act 1900 (NSW), the Real Property Act 1861 (Qld), the Real
Property Act 1886 (SA), the Transfer of Land Act 1893 (WA) or the
equivalent enactment in any other State or Territory which is applicable in
the jurisdiction of the place named in Item 4 of the Schedule;
"TRUST" means the trust (if any) established by the documents described in
Item 5 of the Schedule in respect of which the Customer acts as trustee and
includes each trust (whether or not described in this Security) as trustee
of which the Customer gives this Security;
"TRUST DEED" means the documents pursuant to which each Trust was
established, and includes, in each case, all variations and supplements to
those documents made now or (with the prior written consent of the Bank)
made in the future;
"TRUST FUND" means each trust fund comprised of the assets, property and
revenues held or to be held by the Customer as trustee of the Trust;
words importing persons include bodies corporate;
words importing the singular include the plural and vice-versa and words
importing gender include every other gender;
references to any statute, code or order, ordinance, regulation, rule or
by-law made under or pursuant thereto
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includes all amendments or consolidations of or substitutions for any
thereof from time to time.
(2) HEADINGS
The Clause headings and margin notes shall not affect the interpretation of
this Security.
(3) CUSTOMER
The Customer agrees that where the "Customer" comprises two or more
persons, the obligations undertaken under this Security by the Customer
shall be deemed to be undertaken by such persons jointly and also severally
and the act or default of any one of them shall be deemed to be the act or
default of both or all of them.
2. MONEYS SECURED
(1) PAYMENT ON DEMAND
(Payment of "Moneys Secured")
Subject to any agreement in writing between the Customer and the Bank to
the contrary, the Customer will pay to the Bank on demand in writing made
by or on behalf of the Bank the whole or such part as is specified in the
demand of:
(a) all moneys which now are or at any time in the future may be or become
due owing or payable to the Bank in any manner or on any account or by
reason of any transaction or circumstance whatsoever by the Customer
whether alone or jointly or jointly and severally with any other
person and in whatever name, firm or style and whether as principal or
surety or as trustee of a trust(the "Customer in any capacity"),
(b) all moneys which the Bank (whether requested so to do or not) has
already advanced or paid or is liable to pay or may in the future
(whether requested so to do or not) advance or pay or become liable to
pay to or for or on account of or on behalf of the Customer in any
capacity,
(c) the amount of all liabilities whether actual contingent or prospective
and whether direct or indirect now existing or in the future incurred
by the Customer in any capacity to or in favour of the Bank and
whether arising on or in respect of any instrument transaction or
circumstance or in contract or tort or otherwise, including, without
limitation, the amount of any orders, drafts, cheques, promissory
notes, bills of exchange and other instruments or engagements (whether
negotiable or
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not) in respect of which the Customer in any capacity is or may become
liable in any manner or on any account or by reason of any transaction
or circumstance whatsoever and which have been or may in the future be
drawn accepted endorsed discounted or paid by the Bank or which are or
may as a result of any circumstance or transaction entered into by the
Bank with or for or on behalf of or at the express or implied request
of the Customer in any capacity be held or owned by the Bank whether
as a holder in due course or otherwise and whether such orders,
drafts, cheques, promissory notes, bills of exchange and other
instruments or engagements have matured or not,
(d) all moneys which now are or at any time in the future may be or become
due, owing or payable by or on behalf of the Customer in any capacity
to or in relation to any transaction with or through the Bank for any
government taxes, charges, duties and imposts (even if of a wholly
novel character including without limitation, all stamp duties, credit
business duties, loan instruments duties, financial institutions
duties, bank account debit tax, penalties and interest) and for
discounts, postages, commissions, charges, exchanges, re-exchanges,
fees and expenses according to the usage and course of business of the
Bank from time to time,
(e) the amount of any taxes. duties. imposts, costs. charges. expenses and
liabilities of any kind or description now or in the future incurred
by the Bank-
(i) about the negotiation. preparation. execution. registration.
perfection. stamping, construction or enforceability of this
Security or any document (whether or not under seal and whether
of further assurance or otherwise) which may be executed by or on
behalf of the Customer in any capacity or the Bank or any other
person in pursuance of any of the provisions contained in this
Security,
(ii) under or in respect of this Security or any such document or any
transaction evidenced or secured thereby,
(iii) in the exercise or enforcement or attempted exercise or
enforcement of any right power or remedy, under this Security or
any such document or transaction or which the Bank has or is
entitled to for any reason against the Customer in any capacity
or in respect of the Mortgaged Property,
including (without [imitation) the amount of any taxes, duties, imposts,
costs. charges, expenses and liabilities not
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otherwise mentioned in this paragraph which are incurred by the Bank in
respect of the Mortgaged Property and the amount of any costs charges and
disbursements for legal advice and assistance to the Bank as between
solicitor and own client on a full indemnity basis,
(f) all moneys and amounts mentioned in other provisions of this Security
as being added to or as forming part of the Moneys Secured or which
the Bank is now or in the future becomes entitled to debit and charge
to any account of the Customer in any capacity whether pursuant to
this Security or by reason of any transaction or circumstance or under
any security or document now or in the future held by the Bank from or
relating to the Customer in any capacity,
(g) all and every part of any moneys and amounts (whether or not failing
under a preceding paragraph but without limiting the generality
thereof) -
(i) which are presently owing and payable or are owing but not
presently payable or are owing upon a contingency or remain
unpaid to the Bank (whether as original obligee or as assignee,
transferee or in any other capacity) by the Customer in any
capacity, or
(ii) which may be or become owing to the Bank (whether as original
obligee or as assignee, transferee or in any other capacity) or
for which the Bank (whether as original obligee or as assignee,
transferee or in any other capacity) may be or become liable, in
each case, by reason wholly or partly of past events or by reason
of anything done or omitted to be done by the Bank (whether as
original obligee or as assignee, transferee or in any other
capacity) or by the Customer in any capacity, or
(iii) which may reasonably foreseeably become owing to the Bank
(whether as original obligee or as assignee, transferee or in any
other capacity) on any account or by reason of any transaction or
circumstance or in any manner whatsoever by reason of the
relation of banker and customer or by operation of law or equity
or otherwise by reason of anything done by the Customer in any
capacity or done by or through the Bank (whether as original
obligee or as assignee, transferee or in any other capacity) with
the consent or at the express or implied request of the Customer
in any capacity.
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(h) interest on so much of the moneys and amounts mentioned in the
preceding paragraphs (including interest and compound interest,
whether turned into or added to principal or not) as shall for the
time being or from time to time be owing or payable or remain unpaid
at the rate(s) and otherwise in accordance with any related agreement
in writing or to the extent that there is no such agreement, at the
rate(s) from time to time determined (or redetermined) by the Bank
with reference to all or any part of such moneys and amounts without
any requirement to give notice to the Customer in any capacity or any
other person and without (unless the Bank otherwise in writing agrees)
allowing credit for any credit balance in any account or accounts of
the Customer whether alone or jointly with any other person with the
Bank and otherwise on the following terms and conditions:
(i) without prejudice to the Bank's right to demand or enforce
payment of any of the Moneys Secured interest shall accrue from
day to day, shall be computed from the day or respective days of
the first to occur of such moneys and amounts being advanced or
paid or becoming owing, and shall be payable at the end of such
period(s) ending at the end of such day(s) as the Bank from time
to time determines (or redetermines) but, if demanded earlier,
shall be payable on demand,
(ii) overdue interest and interest upon which interest has become
payable shall itself bear interest at the rate(s) and on the
terms and conditions of this paragraph, may be debited against
the Customer in any capacity at the option of the Bank and
without any requirement to give notice, and shall not be or be
deemed for any reason to have become turned into or added to
principal except as and from the time when the Bank, in its
entire discretion and by express entry to that effect in its
books, turns such interest into and adds it to principal, and
(iii) the Bank may continue to debit and add interest and compound
interest to principal and the provisions herein contained as to
the moneys and amounts (including interest and compound interest)
on which interest is payable shall continue to apply until all
the Moneys Secured (including interest and compound interest)
have been paid in full notwithstanding that as between the Bank
and the Customer in any capacity or any other person the
relationship of banker and customer may have ceased or the death,
bankruptcy, official management, winding up or going into
receivership or
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receivership and management or other legal disability of the
Customer in any capacity or any other person or any composition
or compromise entered into or assented to by the Bank with or in
respect of the Customer in any capacity or any other person or
any judgment obtained against the Customer in any capacity or any
other person and notwithstanding any other matter or thing
whatsoever,
BUT does not include any amount of income tax on any interest or any amount
in respect Of income tax mentioned in Section 261 Of tile Income Tax
Assessment Act 1936 (Cth.) included in or added to interest payable by the
Customer under this Security.
(2) CUSTOMER IN ANY CAPACITY
(Extended meaning of Customer in any capacity)
Each reference in this Clause 2 to the Customer In any capacity includes
(where the context permits)
(a) a reference to each other person whose indebtedness to the Bank is
intended to be secured by this Security whether alone or jointly or
jointly and severally with any other person, and
(b) a reference to the Customer in any of the capacities mentioned in
Clause 2(1)(a).
(3) MONEYS SECURED
(Definition of "Moneys Secured")
This Security extends and applies to and in relation to each and every item
of the moneys and amounts referred to in this Clause and all such moneys
and amounts (whether in the nature of principal, interest. compound
interest, reimbursement, damages or otherwise) are intended to be secured
by this Security and are referred to as the "Moneys Secured" in this
Security.
(4) MERGER
(Payment of interest if merger in judgment)
If the liability of the Customer in any capacity to pay the Bank any of the
Moneys Secured becomes merged in a judgment or order the Customer will pay
the Bank on demand interest on the amount for the time being owing under
the judgment or order at the rate and in the manner provided in Clause 2(l)
for the payment of interest on the Moneys Secured.
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(5) COMPROMISE
(Money deemed to be unpaid notwithstanding compromise)
In interpreting this Security money shall be deemed to remain unpaid
notwithstanding any compromise, compounding or release made or assented to
by the Bank with or in respect of the Customer in any capacity or any other
person until the Bank has received the full amount to which it would have
been entitled if it had not entered into such compromise, compounding or
release but the amount of moneys deemed to have remained unpaid shall not
include such sums as the Bank has actually received in respect thereof.
(6) CERTIFICATE
(Certificate by Bank officer to be conclusive evidence)
For the purposes of this Security and to the full extent permitted by law,
a certificate signed by any officer of the Bank stating any one or more of
the following:
(a) the amount of the Moneys Secured or any part thereof;
(b) that such amount falls within the description or any part of the
description of the Moneys Secured;
(c) that such amount is due, owing or payable to the Bank by the Customer
in any capacity or any other person whose indebtedness to the Bank is
intended to be secured by this Security;
(d) that the Bank is entitled to payment thereof on demand;
shall be conclusive evidence (or, to the extent that is not permitted by
law, shall be prima facie evidence) of the truth of its contents and shall
be binding on the Customer.
3. ACCELERATION
(Events causing acceleration of payment of Moneys Secured)
Notwithstanding any agreement (except an agreement in writing to the
contrary which specifically refers to this Clause or a clause having the
effect of this Clause) or course of dealing for the time being subsisting
between the Customer and the Bank or any indulgence or delay or previous
waiver of its right to demand payment of the Moneys Secured, the Moneys
Secured become immediately payable on demand and this Security becomes
immediately enforceable if any one or more of the following events occurs:
(a) (PAYMENT DEFAULT): if the Customer fails to pay any of the Moneys
Secured when due;
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(b) (OTHER DEFAULT): if the Customer fails duty and punctually to perform
and observe any other covenant, condition or obligation binding on the
Customer expressed or implied in this Security or any agreement,
instrument or security which is collateral or ancillary to or
connected with this Security or to which this Security is collateral
and (if capable of remedy) such failure is not remedied within
fourteen (14) days of the Bank giving notice to the Customer requiring
its remedy;
(c) (ENFORCEMENT OF SECURITIES): if an encumbrancer takes possession of or
a Receiver is appointed to or a warrant of distress or execution is
levied or enforced against the whole or any part of the undertaking,
property or assets of the Customer (including the Mortgaged Property);
(d) (INDEBTEDNESS DEFAULT): if any indebtedness of the Customer becomes
due and payable prior to its stated maturity or is not paid upon its
maturity;
(e) (COMPROMISE): if a compromise or arrangement is proposed between the
Customer and the creditors or any class of creditors of the Customer
or between the Customer, the creditors or any class of creditors of
the Customer and any wholly owned subsidiaries of the Customer and the
creditors or any class of creditors of those subsidiaries or if an
application is made to a court for an order summoning a meeting of the
creditors of any class of creditors of the Customer or a meeting of
the creditors of the Customer and of any of the wholly owned
subsidiaries of the Customer or of such class or classes of those
creditors;
(f) (CORPORATE INSOLVENCY): if in relation to the Customer-
(i) an event happens whereby the Customer is, or if it were a company
incorporated under the Corporation Law, would be, deemed pursuant
to the Corporations Law to be unable to pay its debts;
(ii) (except for the purposes of a reconstruction or amalgamation
while solvent on terms approved by the Bank) an application or
order is made or a resolution is passed, or a meeting is convened
to consider a resolution, for the winding up, or a notice is
published for the dissolution without winding up, of the
Customer;
(iii) (except for the purposes of a reconstruction or amalgamation
while solvent on terms approved by the
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Bank) a liquidator (including a provisional liquidator) is
appointed to the Customer or the Customer is wound up (whether
voluntarily or compulsorily) or is placed under official
management or a meeting of the Customer's creditors is convened
for the purpose of placing the Customer under official
management;
(iv) (except for the purposes of a reconstruction or amalgamation
while solvent on terms approved by the Bank) a proposal is made
by the Customer for a reorganisation, moratorium or other
administration involving the creditors or any class of the
creditors of the Customer or a scheme of arrangement or
composition with or assignment for the benefit of persons
including the creditors or any class of the creditors of the
Customer is entered into or resolved to be entered into;
(v) an investigation is commenced or made into any part of the
affairs of the Customer pursuant to the ASC Law;
(vi) without the prior written consent of the Bank the Customer
reduces or attempts to reduce its share capital or passes a
special resolution determining that any portion of its share
capital which has not been already called up is not capable of
being called up except in the event, and for the purposes of a
winding-up or to buy back any of its ordinary shares;
(vii) the Customer, without the prior written consent of the Bank.
makes or attempts to make any alteration in the provisions of
its memorandum or articles of association which might, in the
opinion of the Bank, detrimentally affect this Security;
(g) (MISREPRESENTATION): if any information furnished to the Bank by or on
behalf of the Customer in connection with this Security or the
Customer or any Surety or any transaction in respect of which any
moneys or amounts forming part of the Moneys Secured (whether prior to
or after the execution hereof) are or become owing by the Customer to
the Bank is found to be false or misleading, or if any covenant,
representation warranty contained in Clause 31 or in any collateral or
ancillary document or any document entered into in connection with
this Security proves to be untrue or incorrect in any material
respect;
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(h) (SUB-DIVISION): If the Customer subdivides any parcel of any land
comprised in the Mortgaged Property or, if any land comprised in the
Mortgaged Property consists of more than one parcel, calls for an
apportionment of the Moneys Secured;
(i) (MATERIAL CHANGE): if in the opinion of the Bank, there is a material
adverse change in the business, assets or financial position of the
Customer which, in the opinion of the Bank, may affect the ability or
willingness of the Customer duly and punctually to perform and observe
any covenant, condition or obligation binding on the Customer
expressed or implied in this Security or any agreement, instrument or
security which is collateral to this Security or to which this
Security is collateral;
(j) (CHANGE IN CONTROL): where the Customer is a proprietary company
within the meaning of the Corporations Law if without the prior
written consent of the Bank any share in the issued share capital of
the Customer that carries rights to vote at a general meeting of the
shareholders of the Customer is allotted or transferred to any person,
whether or not that person is a shareholder in the Customer prior to
the allotment or transfer or any rights attaching to any shares in the
issued share capital of the Customer, are varied, altered, enhanced or
abrogated;
(k) (CHANGE OF MANAGEMENT OR CONTROL): if there occurs a transfer, sale or
other disposition of the assets of the Customer to any person (whether
acting alone or in concert with other persons), or if any agreement or
understanding is entered into or obligation assumed by any person in
relation to the appointment of directors of the Customer such as to
directly or indirectly transfer the effective management or control of
the Customer;
(l) (CESSATION OF BUSINESS): if the Customer stops payment generally or
without the prior written consent of the Bank shall cease or threaten
to cease to carry on its business or where the Customer has been
admitted to the Official List of any Stock Exchange, if the Customer
ceases to be so admitted or if shares or other securities of the
Customer which have been granted Official Quotation are suspended from
trade on the Stock Exchange or otherwise cease to be tradeable
(otherwise than by books closing), for a period exceeding 24 hours;
(m) (BUILDING WORKS): if 41 the opinion of the Bank any of the Moneys
Secured are applied for any purpose other than the purpose for which
they were advanced by the Bank or
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any works for which they were advanced are not carried out and
performed in a manner satisfactory to the Bank or are not carried out
or performed with due expedition;
(n) (ATTACHMENT NOTICE): if the Customer or the Bank receives notice that
a decision or threat has been made to issue, or any step is taken to
serve, an Attachment Notice on any person or an Attachment Notice is
served on any person;
(o) (LOSS OF AUTHORISATIONS): if any of the authorisations, reports or
evaluations described in Clause 31(2)(b) has not been granted or
ceases to be in full force and effect or is such that or is modified
in a manner which, in the opinion of the Bank, may materially and
adversely affect the business, assets or financial position of the
Customer or the ability or willingness of the Customer duly and
punctually to perform and observe its obligations expressed or implied
under this Security;
(p) (FINANCIAL ASSISTANCE FOR ACQUISITION OF OWN SHARES): if the Customer
breaches section 205 of the Corporations Law, or without the Bank's
prior written consent, does any act or thing pursuant to Section
205(10) of the Corporations Law;
(q) (TRANSACTION DOCUMENT VOID OR VOIDABLE): if this Security or any
agreement, instrument or security which is collateral to this Security
or to which this Security is collateral (any 'Transaction Document")
or any provision of any Transaction Document ceases for any reason to
be in full force and effect or becomes void, voidable or
unenforceable, any law suspends, varies, terminates or excuses
performance by the Customer of any of its obligations under any such
document or purports to do any of the same, if it becomes impossible
or unlawful for the Customer to perform any of its obligations under
any Transaction Document or for the Bank to exercise all or any of its
rights. powers and remedies under any Transaction Document or if the
Customer or any person on its behalf alleges that any Transaction
Document has been affected as described in this paragraph;
(r) (DEFAULT BY SUBSIDIARY): if there occurs in relation to any of the
Customer's subsidiaries any of the events described in paragraphs (a)
to (q) (both inclusive) of this Clause construed as if references to
the "Customer" were each a reference to the subsidiary; or
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(s) (TRUSTEE): where the Customer executes this Security as trustee of the
Trust:
(i) if without the Bank's prior written consent the Customer ceases
to be sole trustee of the Trust;
(ii) if without the Bank's prior written consent any part of the
capital of the Trust Fund is distributed in any way;
(iii) if any representation or warranty in Clause 27(3) proves to be
untrue or incorrect in any material respect;
(iv) if an application or order is made in any Court for:
(A) removal of the Customer as trustee of the Trust;
(B) accounts to be taken in respect of the Trust; or
(C) any property of the Trust to be brought into Court or
administered by the Court or under its control;
(v) if any notice is given or meeting is summoned or proposal is put
forward for the removal of the Customer as trustee of the
Mortgaged Property or for the appointment of any other person as
trustee jointly with the Customer;
(vi) if without the prior written consent of the Bank, any alteration
is made to the Trust Deed or, through the exercise of any power
under the Trust Deed, to the constitution of the Trust Fund which
might in the opinion of the Bank detrimentally affect its
security under this Security, and
(vii) if in the case of a unit trust (other than a public unit trust),
any unit is issued, transferred, redeemed, encumbered or
otherwise dealt with, without the Bank's prior written consent;
(t) (DEFAULT BY SURETY):
(i) if there occurs in relation to any Surety any of the events
described in paragraphs (a) to (s) (both inclusive) of this
Clause construed as if
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references to the "Customer" were each a reference to the Surety;
(ii) where any Surety is a natural person if the Surety dies or
commits an act of bankruptcy within the meaning of the Bankruptcy
Act 1966 (Cth.); or
(u) (ANALOGOUS EVENTS): anything analogous to or having the same effect as
any of the events specified above happens under the law of any
applicable jurisdiction.
4. FIXED AND FLOATING CHARGE
(Fixed, floating charge over undertaking, property, rights and assets)
(1) GRANT OF CHARGE
The Customer hereby (and to the intent that the security so constituted
shall be a continuing security in favour of the Bank) charges with the due
and punctual payment of the Moneys Secured as beneficial owner, the whole
of its undertaking and all and singular its property, rights and assets
whatsoever and wheresoever situate both present and future including,
without limitation, the goodwill of its business and its uncalled and
called but unpaid capital from time to time (including any premium and
whether called by its directors or by a Receiver, official manager
liquidator) and where the Customer gives this Security as trustee of the
Trust, the Customer hereby (and to the intent) also charges with the due
and punctual payment of the Moneys Secured as trustee of the Trust and so a
rank in priority to the interest of the beneficiaries of the Trust all and
singular the property, rights and assets of the Trust whatsoever and
wheresoever situate both present and future including, without limitation,
the goodwill of the business comprised therein, and any proceeds from the
issue of units in the Trust, if the Trust is a unit trust, which are due
and payable but remain unpaid, the proceeds of sale of any units in the
Trust, if the Trust is a unit trust, which have been forfeited and the
right of the Customer to receive any such proceeds together with the right
to be indemnified out of the property, assets and revenues comprising the
Trust Fund in all cases and on all occasions where the Customer as such
trustee is entitled to be so indemnified.
(2) EXTENT OF FIXED CHARGE
The charge so created is -
(a) a Fixed charge as regards:
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(i) all estates and other interests in freehold or leasehold land
and other immovable property (except where the Customer is by
law prohibited from charging or incompetent to charge the same
by way of a fixed charge) and all buildings, fences and other
erections, trade and other fixtures, fixed plant and machine
from time to time on any such freehold or leasehold land and
other immovable property;
(ii) all book and other debts and monetary claims, together with the
full benefit of all related guaranteed securities and
indemnities and all liens, reservations of title, rights of
tracing and other rights enabling the Customer to enforce any
such debts or claims;
(iii) all stocks, shares, debentures (including notes), loan capital,
rights to subscribe for, convert other securities into or
otherwise acquire any stocks, shares, debentures and loan
capital of any other body corporate or any foreign, Federal,
State, Territorial or local government or any government
instrumentality, together with all dividends, interest and other
income and all other rights of whatsoever kind deriving from or
incidental to any of them;
(iv) all goodwill and uncalled capital (including any premium);
(v) all Intellectual Property;
(vi) all plant and machinery (excluding plant and machinery for the
time being forming part of the Customer's stock in trade or work
in progress), and
(vii) all chattels hired, leased or rented by the Customer to any
other person together in each case with the benefit of the
related hiring, leasing or rental contract and any guarantee.
indemnity or other security for the performance of the
obligations of any person under or in respect of such contract;
and
(b) a floating charge as regards all other Mortgaged Property.
(3) CRYSTALLISATION BY NOTICE
(Fixing of floating charge on notice)
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The Bank may by notice in writing to the Company convert the floating
charge so created into a fixed charge affecting all or any part of the
property and assets which for the time being are the subject of the
floating charge.
(4) CRYSTALLISATION OF FLOATING CHARGE
(Fixing of floating charge upon certain events)
As well as becoming a fixed charge by operation of law -
(a) the floating charge so created becomes a fixed charge if an event
specified in Clause 3(e) or 3(f)(i), (ii),(iii),(iv), (v) or (vi), or
3(l) or 3(s)(i), (ii),(iii) or (iv) occurs in relation to the
Customer; and
(b) the floating charge so created becomes a fixed charge with respect to
the property and assets affected if an event specified in Clause 3(b)
(which arises as a result of a breach or threatened breach by the
Customer of Clause 6(1)(a), 6(1)(c) or 6(1)(e)) occurs or an event
specified in Clause 3(c) or 3(n) occurs.
(5) JEOPARDY POWER
(Bank entitled to possession if seizure or distress)
If at any time it shall appear to the Bank chat any part of the Mortgaged
Property shall be in danger of seizure, distress, diligence or other legal
process, or that the Bank's security there over shall for any other reason
be in jeopardy, the Bank shall be entitled without notice to the Customer
to take possession of and hold the same or to appoint a Receiver thereof.
(6) DECRYSTALLISATION
(Fixed charge to operate as floating charge on notification by Bank)
Where pursuant to Clause 4(3), 4(4) or 4(5) the floating charge conferred
by this Security has become or would be fixed with respect to the whole or
any of the Mortgaged Property (the "Relevant Assets")
(a) the Bank may notify the Customer in writing that the Bank no longer
requires this Security to operate as a fixed charge with respect to
the whole or any of the Relevant Assets specified on the Bank's notice
with effect on and from the effective date specified in the Bank's
notice,
(b) on and from the effective date specified in the Bank's notice -
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(i) the Customer shall be at liberty to deal with the Relevant Assets
specified in the Bank's notice which were acquired by the
Customer prior to the effective date as if those Relevant Assets
had continued to be charged by way of floating charge under this
Security,
(ii) the floating charge conferred by this Security shall continue to
operate as a floating charge with respect to the Relevant Assets
specified in the Bank's notice which are acquired on or after the
effective date, and
(iii) in the absence of notice to the contrary, any person dealing with
the Customer in relation to the Relevant Assets shall be entitled
to rely on the Banks notice as conclusive evidence that the
Relevant Assets are charged by way of floating charge, or are to
be treated as if they are charged by way of floating charge,
under this Security on and from the effective date.
(7) FURTHER ASSURANCE OF RELEVANT ASSETS
(Floating charge of Relevant Assets)
The Customer hereby, and by way of further assurance, charges all and
singular the Relevant Assets with the due and punctual payment of the
Moneys Secured by way of floating charge on the same terms and subject to
the same conditions as the floating charge conferred by Clause 4(1) and
4(2) including, without limitation, the terms and conditions contained in
Clause 4(3), 4(4) and (5) to the intent that those provisions and Clause
4(6) and 4(7) shall operate from time to Lime in relation to any Mortgaged
Property which is subject to or which is to be treated as if it is subject
to. a floating charge under this Security. If Clause 4(3), 4(4) or 4(5) has
the effect of converting the floating charge created by this Clause 4(7) to
a fixed charge in relation to any Relevant Asset, the effect of Clause 4(6)
shall also then be revoked in relation to that Relevant Asset with effect
from the date of such conversion.
(8) ADDITIONAL RIGHT OF FURTHER ASSURANCE
(Specific further assurance)
Clause 4(7) does not prejudice any rights of the Bank under Clause 5 to
require the Customer to better or further assure the Mortgaged Property to
the Bank.
5. FURTHER ASSURANCE
(1) GENERAL
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(Bank may request Customer to execute further documents for better assuring
Mortgaged Property)
The Customer, and every person claiming under or in trust for the Customer,
will from time to time, whensoever requested by the Bank and at the
Customer's cost, execute in favour of the Bank, or as the Bank may direct,
such further or other legal assignments, transfers, mortgages, legal or
other charges or securities, deeds arid documents as in each such case the
Bank shall stipulate over the Mortgaged Property for the purpose of more
effectively providing security to the Bank for the payment or discharge of
the Moneys Secured.
(2) PROVISIONS IN FURTHER ASSURANCE
(Form of further assurance determined by Bank)
Without prejudice to the generality of Clause 5(1), the assignments,
transfers. mortgages, legal or other charges, or securities, deeds and
documents to which that Clause refers shall be in such form as shall be
prepared on behalf of the Bank and may contain provisions such as are
contained in this Security or provisions to the like effect and such other
provisions of whatsoever kind (including without limitation powers of sale
and covenants to pay principal and interest) as the Bank may consider
requisite for the improvement, perfection or registration of the security
constituted by this Security or for better assuring the Mortgaged Property
to the Bank.
(3) ADDITIONAL OBLIGATIONS
(Implied covenants continue)
The obligations of the Customer under this Clause 5 shall be in addition to
and not in substitution for the covenants for further assurance deemed to
be included in this Security by law.
(4) DEPOSIT OF DEEDS
(Bank to retain title deeds)
Subject to the requirements of any person for the time being entitled to a
Permitted Prior Charge, the Customer will (upon the execution of this
Security, or upon becoming possessed of any of [hem at any time in the
future) deposit with the Bank and the Bank will be entitled to retain
during the subsistence of this Security as further security for the payment
of the Moneys Secured all deeds and other documents constituting or
evidencing the title to the Mortgaged Property (including without prejudice
to the generality of the foregoing any leases granted by the Customer or
pertaining to the Mortgaged Property if requested by the Bank).
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(5) AFFIXATION AND ENDORSEMENT
(Customer to affix items to or endorse documents)
The Customer shall, whenever requested by the Bank and at the Customer's
cost, affix to such items of the Mortgaged Property or endorse or cause to
be endorsed (a such documents as are referred to in this Clause 5 as the
document stipulates, labels, signs or memoranda in such form as the Bank
requires referring or drawing attention to Security.
6. RESTRICTIONS ON OTHER SECURITIES AND DISPOSALS
(1) RESTRICTION
(Negative covenants relating to charges on and certain disposals of the
Mortgaged Property)
The Customer agrees that at no time during the subsistence of the security
constituted by this Security with Customer, otherwise than in favour of the
Bank, or with the prior written consent of the Bank and in accord with and
subject to any conditions which the Bank may attach to its consent -
(a) (SECURITY INTERESTS): create, grant extend or permit or suffer to
arise or subsist any mortgage, charge, or fixed security, floating
charge, pledge, hypothecation or lien (other than a lien arising
solely by operation of law) or other encumbrance or security interest
or liability of any kind on or over the Mortgaged Property whether
ranking or purporting to rank in point of security in priority to,
equally with, or after the security constituted by this Security or
enter into an agreement to do so; or
(b) (SALE AND OTHER DEALINGS): sell, convey transfer, assign, lease, tend
or otherwise deal with or part possession or dispose of, whether by
means of one or a number of transactions related or not and whether
one time or over a period of time, the whole or any part of the
Customer's undertaking or (save in the normal course of trading) of
its property, rights or assets, or enter into an agreement (otherwise
than an agreement conditional upon the consent or agreement of the
Bank being obtained) to do so; or
(c) (MONETARY CLAIMS): factor or discount or otherwise deal with, dispose
of. compromise or make or suffer set-off in respect of any of its book
debts, monetary claims or revenues otherwise than by getting them in
paying them to such banking account (if any) as is nominated or
approved
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by the Bank (which approval not be unreasonably withheld) or enter into an
agreement to do so; or
(d) (TRUST OF SALES PROCEEDS): agree to account to or hold upon trust for
any person the proceeds of sale (including cash, book debts, other
monetary claims and negotiable and similar instruments) arising out of
or in connection with any goods sold by the Customer and (whether or
not in the ordinary course of business) with the express or implied
authority of the owner of such goods; or
(e) (SALE AND LEASE-BACK): convey, transfer, assign, deliver or otherwise
deal with, part with possession or distribution of any part of the
Mortgaged Property the subject of the floating charge under this
Security with the intention or for the purpose of retaining or
accepting delivery of possession of such property under or pursuant to
an agreement or arrangement to purchase the same or any lease or
hiring agreement or arrangement (whether or not containing an option
for the Customer to purchase) in respect of such property or enter
into an agreement to do so; or
(f) (SECURITY DEPOSITS): deposit moneys with any person if such moneys are
not repayable unless the Customer pays or discharges any other
indebtedness or performs or observes any other obligation due to or
made such person or any other person or where such person requires or
could for the time being claim or assert set-off or counterclaim or
enter into an agreement to do so; or
(g) (TITLE RETENTION): enter into any transaction under which either (1)
title to goods supplied to the Customer reserved to the supplier
thereof or any other person until payment is made for such goods or
any other goods or services, or (ii) the proceeds of sale by the
Customer of any goods are held in trust for the supplier of an
ingredient or component thereof or any other person in contravention
of the conditions and limitations (if from time to time specified by
the Bank in relation to such transactions or enter into an agreement
to do so.
(h) (OTHER ACTIONS): do or suffer anything else to be done in derogation
of the security constituted by this Security.
(2) POWERS OF RECEIVER
(Restrictions do not affect Receiver)
The prohibitions set out in Clause 6(1) shall not be construed as limiting
any powers exercisable by any Receiver appointed
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by the Bank under this Security who is an agent of the Customer.
7. INSURANCE
(1) TAKING OUT AND MAINTAINING INSURANCE
(Customer agrees to insure Mortgaged Property and to comply with insurance
policies)
The Customer agrees that the Customer will at all times during the
subsistence of the security constituted by Security comply with all
covenants, undertakings and conditions as to the insurance of the Mortgaged
Property imposed by the terms of any Permitted Prior Charge affecting the
Mortgaged Property or by the terms of any lease or agreement for lease
under which the Customer's estate or interest in the Mortgaged Property is
derived and as far as not prohibited by any such terms, the Customer will:-
(a) (INSURE): cause the Mortgaged Property (including, the rent and
profits, if any, thereof) to be insured and to be kept insured in an
insurance office or with underwriters approved by the Bank and, if
through an insurance broker, through an insurance broker approved by
the Bank (which approvals shall not be unreasonably withheld) against
loss or damage by fire, storm, tempest, malicious damage, against
public liability risk or against all such other risks whatsoever as
the Bank may from time to time stipulate, (in an amount satisfactory
to the Bank in each case) with the interest of the Bank as mortgagee
noted by endorsement on the policy of insurance, or if the Bank so
directs, in the joint names of the Customer and the Bank (the
"Insurance");
(b) (PAY PREMIUMS): duly and punctually pay all premium and other moneys
payable in connection with the Insurance and promptly upon request by
the Bank produce to the Bank receipts or other evidence of their
payment;
(c) (NO OTHER INSURANCE): not take out any further or other insurance in
relation to the Mortgaged Property in the Customer's name alone or do
or suffer to be done anything which may prejudice any of the Insurance
or render it void or voidable or which may permit an insurer to
decline a claim;
(d) (INSURED EVENTS): notify the Bank in writing forthwith upon the
happening of any event which entitles a claim to be made under any of
the Insurance; and
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(e) (DEPOSIT OF POLICIES): deposit with the Bank as further security for
the Moneys Secured all policies, certificates of insurance and other
contracts of insurance relating to the Mortgaged Property (whether or
not such insurance relates to other property of the Customer) or, if
the Bank agrees in writing for them not to be so deposited, produce
the same to the Bank for inspection.
(2) BANK'S RIGHTS
(Bank may renew insurance if Customer defaults)
If the Customer defaults in complying with Clause 7(1) or fails to provide
the Bank forthwith upon request with evidence satisfactory to the Bank of
compliance with Clause 7(1) it shall be lawful, but not obligatory, for the
Bank to effect or renew the Insurance either in its own name or in its name
and that of the Customer jointly or in the same of the Customer with an
endorsement of the Bank's interest and any moneys expended by the Bank in
so effecting or renewing the Insurance shall be reimbursed by the Customer
to the Bank on demand and shall be added to and form part of the Moneys
Secured.
(3) CLAIMS
(Insurance moneys to be held in trust for Bank)
All claims and moneys received or receivable under any Insurance or any
insurance of the Mortgaged Property taken out by the Customer in
contravention of this Clause shall (subject to the rights and claims of any
person entitled to the benefit of a Permitted Prior Charge or any lessor of
any part of the Mortgaged Property) be held by the person receiving such
moneys in trust for the Bank and shall be applied in repaying or reducing
the Moneys Secured or, if the Bank so requires, in repairing, replacing,
restoring or rebuilding the property damaged or destroyed and to pay the
surplus (if any) to the Customer.
(4) POWER TO COMPROMISE CLAIMS
(Bank may compromise claims)
In the event of damage or loss the Bank shall alone have full power to
settle or compromise any claim against any insurer under any insurance
covering the Mortgaged Property whether or not such insurance also covers
other property.
8. GENERAL UNDERTAKINGS
(Customer undertakes to preserve business and Mortgaged Property)
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The Customer agrees that the Customer will at all times during the
subsistence of the security constituted by this Security:-
(a) (BUSINESS): carry on and maintain the present character of its
business in a proper and efficient manner and cause each of its
subsidiaries to do the same;
(b) (MORTGAGED PROPERTY): maintain and protect the Mortgaged Property and
put into and keep in good and substantial repair and in good working
order and condition the Mortgaged Property and all buildings fences
and other erections, and improvements, trade and other fixtures and
the plant and machinery at any time existing upon or forming part of
any land comprised in the Mortgaged Property ("Improvements") and not
at any time (except in the ordinary course of repair, maintenance or
improvement) demolish, pull down, remove, dismantle, injure, alter or
add to any of them or by any means lessen or suffer to be lessened the
value of the Mortgaged Property without the prior consent in writing
of the Bank;
(c) (REPAIR): amend every defect in the repair, working order and
condition of the Mortgaged Property and any Improvements forthwith on
being required so to do by the Bank;
(d) (ENTRY BY BANK): permit the Bank its agents, servants, employees,
contractors, consultants and workmen at all times to enter into and
upon the Mortgaged Property to view and examine the state of repair
order and condition of the Mortgaged Property and the Improvements and
do or perform any act, matter or thing which ought to have been done
or performed by the Customer under this Security or to make good any
default of the Customer under this Mortgage, and to inspect and take
copies of or extracts from all books of account, vouchers and other
documents (including those kept in computer records or other
electronic forms of data storage) relating in any way to the business
transactions of the Customer, all at the cost of the Customer (without
the Bank being or being deemed to be a mortgagee in possession by
virtue of any such entry) and any moseys expended for all or any of
such purposes shall form part of the Moneys Secured;
(c) (REMOVAL): if requested by the Bank at any time, remove any structure
which encroaches on any land in the Mortgaged Property,
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(f) (LEASED PROPERTY): duly and punctually pay all rent and perform and
observe the covenants and other contained in any lease or agreement
for lease under which any of the Mortgaged Property may be without
prejudice to the generality of the foregoing take no step whatsoever
whereby any such agreement may be forfeited, surrendered or terminated
or omit to do anything if such omission may such forfeiture, surrender
or termination and give notice to the Bank forthwith upon the
happening of an as a result of which the lease or agreement may be or
become liable to be forfeited, surrendered or terminated.
(g) (PERMITTED PRIOR CHARGE): perform and observe all covenants and
obligations, binding on the Customer any Permitted Prior Charge or any
other encumbrance and all restrictive and other covenants and
stipulations for the time being affecting any of the Mortgaged
Property or its use or enjoyment;
(h) (RENT AND TAXES): duly and punctually pay all rents, rates, taxes,
duties, charges, outgoings and assessments of every description (even
of a wholly novel character) now or in the future charged or
chargeable or payable to the Customer or upon or in respect of the
Mortgaged Property or upon its use or upon the owner or occ in respect
of the Mortgaged Property and cause each of its subsidiaries to do the
same in relation to itself, its undertaking, property, rights and
assets;
(i) (COMPLIANCE WITH STATUTES): (unless the Bank requires the Customer to
make or join with the Bank in such objections, appeals or
representations as the Bank may consider expedient, in which case the
Customer shall at the cost of the Customer make or join with the Bank
in making those objections appear representations) comply with and
procure that all tenants, employees, agents, contractors or sub-
contractor of the Customer comply with all statutes, regulations,
ordinances and by-laws and the requirements of relevant authority or
order binding on each of them or where non-compliance may impose a
charge or liability on the Mortgaged Property or prejudicially affect
this Security or render this Security or the Mortgaged Property liable
to forfeiture (including without limitation, giving all notices and
effecting any registration required by law in relation to the Customer
or the ownership of any land comprised in the Mortgaged Property, and
obtaining all consents and approvals required in relation to any
construction on, or use of the Mortgaged Property, and complying with
all building and fire regulations) and deliver or produce to the Bank
forthwith upon receipt any notice or order or proposal of
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any relevant authority relating to the ownership, use or conditions of
the Mortgaged Property;
(j) (AMOUNTS): keep proper accounting and financial statements in such
manner and form as may be lawfully required or permitted and therein
make true and complete entries of all dealings and transactions of and
in relation to its business and that of each of its subsidiaries and
procure that the same are at all reasonable times available for
inspection by the Bank, its employees, professional advisers and
agents and provide the Bank, its employees. professional advisers and
agents with all such information respecting the Customer's or any of
subsidiaries business and affairs as the Bank from time to time
requires.
(k) (AUDIT): at least once in each year or more often if so required by
the Bank cause the accounting records and financial statements of the
Customer and its subsidiaries to be duty audited by an auditor
approved by the Bank (such approval not to be unreasonably withheld)
and immediately in the future provide the Bank a Copy of the balance
sheet and trading and profit and loss account of the Customer and each
of its subsidiaries duly certified by such auditor and the report of
such auditor;
(l) (TITLE RETENTION): provide the Bank on request with information in
writing as to the number of, and the amount involved in, transactions
under which either (i) title to goods supplied to the Customer is
reserved to the supplier thereof or any other person until payment is
made for such goods or any other goods or services, or (ii) the
proceeds of sale by the Customer of any goods are held in trust for
the supplier of any ingredient or component thereof or any other
person;
(m) (COPIES OF ACCOUNTS): furnish to the Bank copies of all reports,
accounts and notices and circulars issued by it to its members as and
when issued;
(n) (CALLS): not without the prior written consent of the Bank call up or
receive in advance of calls any of the uncalled capital (or premium)
hereby charged or apply the same to any purpose other than in or
towards payment of the Moneys Secured;
(o) (RECEIPTS): produce to the Bank forthwith upon demand the receipts for
all payments referred to in this clause;
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(p) (ACCELERATION EVENTS): do all thing necessary to ensure that no event
referred to in Clause 3 occurs and notify the Bank in writing
forthwith upon becoming aware of the occurrence of any such event;
(q) (PRIORITY AGREEMENT): if the Customer creates or grants a mortgage,
charge or encumbrance over the Mortgaged Property after the date of
this Security ("the Subsequent Security") forthwith upon execution or
creation of the Subsequent Security and in any event:
(i) before any request is made to the Bank to produce the relevant
instrument of title for registration of the Subsequent Security;
and
(ii) before any moneys are secured actually or contingently by the
Subsequent Security;
procure the holder of the Subsequent Security to enter into a priority
agreement with the Bank so as to preserve and confirm the Bank's
position as mortgagee ranking in priority to the holder of the
Subsequent Security for an amount and on terms satisfactory to the
Bank;
(r) (INFORMATION): give to the Bank such oral or written information as
the Bank requires with respect to the Mortgaged Property and all
matters relating to (he business or affairs of the Customer; and
(s) (RESTRICTED TRANSACTIONS): if the Customer is a proprietary company -
(i) not make any loan to any member or officer (whether present or
future) of the Customer or any body corporate which is a related
body corporate of the Customer within the meaning of the
Corporations Law or to any spouse, issue, brother, sister or
ancestor of any such member or officer Without the prior written
consent of the Bank;
(ii) include or cause to be included as a term of all loans (whether
present or future) made to the Customer by any member or officer
(whether present or future) of the Customer or any body corporate
which is a related body corporate of the Customer within the
meaning of the Corporations Law or by any spouse, issue, brother,
sister or ancestor of any such member or officer a provision that
for so long as the Moneys Secured remain unpaid no part of such
loan nor any interest thereon shall be repaid without the written
consent of the Bank;
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(iii) not declare or pay any dividend without the prior written consent
of the Bank; and
(iv) not pay or provide any salary or benefit to any member or officer
(whether present or future) of the Customer or of any body
corporate which is a related body corporate of the Customer
within the meaning of the Corporations Law or to any spouse,
issue, brother, sister or ancestor of such member or officer in
excess of the amount paid for the financial year of the Customer
immediately prior to the date of this Security without the prior
written consent of the Bank or except as required by law.
9. BANK'S RIGHT TO REMEDY DEFAULT
(Bank entitled to remedy Customer's default)
(1) REMEDIAL ACTION
If at any time the Customer fails, or is believe by the Bank to have
failed, to perform or observe any of the covenants or conditions contained
in this Security, it shall be lawful, but not obligatory, for the Bank (but
without prejudice to any other rights, power or remedy of the Bank) to do
ad things and pay all moneys necessary or expedient in the opinion of the
Bank to make good such failure to the satisfaction of the Bank and all
moneys so paid (with any costs, charges and expenses so incurred) shall be
deemed to have been properly expended and shall form part of the Moneys
Secured.
(2) NOT MORTGAGEE IN POSSESSION
No exercise by the Bank of its powers under this Clause shall render the
Bank, or make the Bank liable to account as a mortgagee in possession.
10. BANK'S RIGHTS ON DEFAULT
(1) CLAUSE 3 EVENTS
(Bank's rights on occurrence of Clause 3 events)
Subject to Clause 10(2), if an event described in Clause 3 occurs the Bank
may thereupon or at any time after such occurrence (in addition to any
other rights, powers and remedies conferred on a mortgagee by law) do all
or any of the following things without giving any or further notice or
demand to the Customer-
(a) (POSSESSION): enter upon and take possession of the Mortgaged Property
and manage and use the Mortgaged Property and enter into receipt of
the rents and profits of the Mortgaged Property (with power to demand
and
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recover the same by action or otherwise and give effectual receipts
therefor) and cam on at the risk of the Customer any business or
pursuit for the time being or usually carried out on or comprised in
the Mortgaged Property with all the powers of an absolute owner;
(b) (LEASE): whether in or out of such possession and receipt, lease or
otherwise permit the use of the Mortgaged Property by third persons
(whether alone or with others and with or without the Bank) in the
manner and with the powers described in this Security;
(c) (SALE): whether in or out of such possession and receipt, sell the
Mortgaged Property and exercise all other powers conferred upon a
mortgagee by law;
(d) (RECEIVER): whether in or out of such possession and receipt and
whether or not the Bank is entitled to appoint a Receiver under any
statute, by writing appoint any person or persons (including any
employee of the Bank if so permitted by law) to be a Receiver of the
Mortgaged Property with all the powers and on the terms and conditions
described in this Security; and
(e) (AGENT): appoint and employ one or more agents to act jointly or
severally on behalf of the Bank in the exercise of any right, Power or
remedy conferred on the Bank by any law or this Security.
(2) NO DEMAND OR NOTICE
(Requirement for demand waived)
Before the Bank exercises a right, power or remedy conferred by Clause
10(1) or on a mortgagee by law, the Bank shall give any notice or demand
and allow any time to elapse which the Bank is required by law to give or
allow, but to the extent that any notice, demand or lapse of time which is
otherwise applicable by law is capable of being waived or negatived by
agreement, it is waived and negatived and, to the extent that any period of
time which is required to be allowed by law is not capable of being so
waived or negatived, but is capable of being a being fixed as a lesser
period, that period is fixed as the longer of whichever is permitted to be
fixed of the minimum period required by law.
(3) NOT ACCOUNTABLE AS MORTGAGEE IN POSSESSION
(Bank not accountable as mortgagee in possession)
The Bank shall not by reason of entry into possession of the Mortgaged
Property be liable to account as in possession or
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for anything except actual receipts or be liable for any loss upon
realization or for any omission for which a mortgagee in possession might
be liable.
(4) WITHDRAWAL
(Bank may withdraw from possession after entry)
The Bank and any Receiver appointed under this Security may at any time, in
the Bank's or the Receiver's discretion, withdraw from possession after
entry or appointment, re-enter and withdraw as often as the Bank or
Receiver deems expedient.
11. POWER OF SALE
(1) METHOD OF SALE
(Power to sell and ancillary powers)
Without derogation from the powers referred to in the previous clause and
merely by way of example and thereto, upon the power of sale becoming
exercisable by the Bank, the Bank may forthwith or at any time or from time
to time in the future -
(a) (SALE): sell all or any part or parts of the Mortgaged Property by
public auction, public tender or private or partly by any such mode of
sale (and unless prohibited by law with power on a sale by auction to
of the property offered for sale) and for cash or on terms and upon
such terms and conditions as thinks fit and either separately as a
whole or in lots (granting and securing such easements as the Bank
fit) or together with any other real or personal property which for
the time being may be mortgage or otherwise held by the Bank from the
Customer (whether of the same tenure or otherwise) with apportion the
purchase money and expenses of sale between the Mortgaged Property and
the other in any manner which the Bank thinks fit and on any sale any,
time may be allowed for the payment of the or any part or parts of the
purchase money either with or without taking security for the payment
of the purchase money and with or without interest and if with
interest then at any rate or rates nominated Bank;
(b) (MAKE PROPERTY MORE SALEABLE): apply for and obtain an amendment of
the title to or to any Mortgaged Property and do or cause to be done
any other act deed or thing in the opinion of the Bank or desirable
for perfecting the title of the Customer thereto or for making the
Mortgaged Property more saleable or for enabling any land comprised in
the Mortgaged Property to be sold in subdivided or lots, including but
not limited to, causing to be made surveys, obtaining town planning,
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building permits consents and approvals, acquiring rights of
carriageway, drainage, sewerage and other easements to any adjacent
lands, creating over such land rights of carriageway, drainage,
sewerage and other easements laying out and constructing such roads,
drains, sewers and other services, and constructing improvements to
such land, all as are in the opinion of the Bank necessary or
desirable;
(c) (SURRENDER OF TITLE): surrender to the Crown all or any part or parts
of the Mortgaged Property and with the Crown or with any person all or
any part of the Mortgaged Property for other property of any either
with or without giving or receiving any money or other consideration
for the purpose of equal exchange and any property so acquired shall
thereupon be held by the Bank on account of the Customer as further
security (or the Moneys Secured and the power of sale and all other
rights powers or remedies by any law conferred on the Bank shall apply
to and be capable of being enforced in respect of that property.
(d) (FIXTURES): sever fixtures belonging to the Customer and sell them
under the power of sale herein conferred apart from the Mortgaged
Property.
(2) PROTECTIVE PROVISIONS
(Power of sale exercisable despite neglect or waiver)
The Bank's powers of sale may be exercised notwithstanding any previous
neglect or waiver of any right to prior sale and no demand or notice of
sale made or given under this Security shall be deemed to be waived because
prior negotiations or payment of interest or payment on account of the
Moneys Secured by the Customer subsequent to such demand or notice and such
demand or notice shall remain in full force and effect notwithstanding
negotiations or payment until expressly waived in writing by the Bank.
(3) PURCHASE MONEYS
(Bank accountable only for moneys actually received)
The Bank shall be accountable for or chargeable with so much only of the
purchase money as it actually receives upon a sale and only from the time
of such receipt notwithstanding that it may have transferred the Mortgaged
Property to the purchaser and taken a mortgage from the purchaser to secure
so much of the purchase money as may not have been then actually paid or
that the Bank may have sold the Mortgaged Property to a purchaser on terms
without transferring it to the purchaser and notwithstanding a sale the
Customer shall remain liable
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for the Moneys Secured beyond the amount of moneys actually received by the
Bank.
12. POWER TO LEASE
(Mortgaged Property May be leased on terms determined by Bank)
Upon the Bank becoming entitled to exercise its powers to lease the
Mortgaged Property the Bank may lease or otherwise permit the use of the
Mortgaged Property by third parties (whether alone or with others and with
or without the Bank) for such term and on such terms and conditions as the
Bank thinks fit and either taking or not taking any fine or premium and
either at a pecuniary rent or in consideration of the tenant paving or
delivering to the Bank a share or proportion of the returns or profits
derived by the tenant from the use of the leased premises and either with
or without the option to the lessee at during the currency or at the
termination of any such lease of purchasing the leased premises or any part
thereof or of renewing any such lease and either for the purpose of
occupation building agriculture grazing mining or for any other purpose and
under and subject to such terms and conditions in all respects as the Bank
thinks fit and if with an option of purchase at such price and upon such
terms and conditions as the Bank thinks fit with power to the Bank to
compromise with and make concessions to tenants and vary and accept
surrenders of leases upon such terms and conditions as the Bank thinks fit
and to determine any tenancy now existing or which may in the future be
created and to eject any person from the Mortgaged Property and to
institute and carry on any proceedings for that purpose.
13. RECEIVER
(1) APPOINTMENT AND REMOVAL
(Bank may appoint or remove one or more Receivers)
The Bank may appoint one or more persons to be a Receiver or Receivers of
the whole or any part of the Mortgaged Property or of the income thereof or
both and may:
(a) remove any Receiver previously appointed hereunder; and
(b) appoint another person or persons as Receiver or Receivers, either in
place of a Receiver so removed or who has otherwise ceased to act or
to act jointly with a Receiver previously appointed.
If at any time and by virtue of any such appointment any two or more
persons shall hold office as Receiver of the same part or parts of the
Mortgaged Property or the income thereof or both, each person shall be
entitled (unless the contrary shall
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be stated in the deed or other instrument appointing them) to exercise all
the powers and discretions by this Security or by statute conferred on a
Receiver individually and to the exclusion of the other or others of them.
(2) WRITING REQUIRED
(Appointment in writing)
Every such appointment or removal of a Receiver, and every delegation or
revocation by the Bank in the exercise of any right to delegate its powers
or to revoke any such delegation herein contained shall be made either by
deed or by instrument in writing under the hand of any officer of the Bank
or any person authorized in writing in that behalf by any officer of the
Bank.
(3) POWERS OF RECEIVER
(General powers)
Every Receiver for the time being holding office by virtue of such an
appointment shall (subject to any limitations or restrictions expressed in
the deed or other instrument appointing him but notwithstanding any
bankruptcy, winding-up, official management or dissolution of the Customer)
have in relation to the assets and income in respect of which he is
appointed power in the name and on behalf and at the cost of the Customer
to do or omit to do anything which the Customer himself could do or have
done as an absolute owner and irrespective of any such bankruptcy, winding-
up, official management or dissolution and, without prejudice to the
generality of the foregoing:
(a) all the powers conferred by law on mortgagors but without the
restrictions hereby imposed on the Customer;
(b) (with the consent of the Bank) all the powers conferred bylaw on
mortgagees in possession as such powers are hereby varied and extended
and applicable to the Bank in accordance with the provisions hereof,
and
(c) all the powers conferred by law on Receivers appointed under any
statute.
(Specific powers)
In addition and without prejudice to the generality of the foregoing the
Bank and every such Receiver shall (notwithstanding any bankruptcy,
winding-up, or official management or dissolution of the Customer) have the
Power to do all the following things, namely:-
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(i) (TO TAKE POSSESSION): to take possession of, collect and get in
the Mortgaged Property and for that purpose to make, or to
require the directors of the Customer to make, calls upon the
holders of the Customer's share capital (including in relation to
any premium) in respect of any such capital of the Customer which
remains uncalled and to enforce payment of calls so made and any
previous unpaid calls by taking proceedings in the name of the
Customer or his own name;
(ii) (TO MANAGE): to carry on and manage, or concur in the carrying on
and management of, the whole or any part of the Customer's
business including the power where the Customer has one or more
subsidiaries of supervising, controlling and financing such
subsidiary or subsidiaries (inclusive of bodies corporate as are
referred to in sub-paragraph (v) below) and its or their business
or businesses and the conduct thereof:
(iii) (TO IMPROVE): to alter, rehabilitate, improve, develop, complete,
construct, modify, refurbish or any of the Mortgaged Property
including without limitation the power to complete or undertake
or in the completion or undertaking, with or without
modification, of any project in which the Customer was concerned
or interested prior to his appointment, being a project for the
alteration, improvement, development, completion, construction,
modification, rehabilitation, refurbishment or repair of
Mortgaged Property;
(iv) (TO SELL OR LEASE): to sell, or concur in selling, leasing or
otherwise disposing of the whole or any pa the Mortgaged Property
without, so far as it is possible to so provide, the need to
observe the restrictions imposed by law and upon such terms and
conditions as he shall think fit;
(v) (SHARES): to promote, or otherwise acquire, the share capital of
any body corporate with a view (if the Customer itself shall be a
body corporate) to such first-mentioned body becoming a
subsidiary of the Customer and purchasing, leasing or otherwise
acquiring an interest in the whole or any part of the Mortgaged
Property or carrying on any business in succession to the
Customer or any subsidiary Customer;
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(vi) (CONVEYANCE): to carry any sale, lease or other disposal of any
land or buildings and other property assets into effect by
conveying, transferring, assigning or leasing in the name of the
Customer and for that purpose to enter into covenants and other
contractual obligations in the name of and so as the Customer;
(vii) (FIXTURES): to sever fixtures belonging to the Customer and sell
them apart from any other part of Mortgaged Property,
(viii) (LEGAL ACTION): to take or defend any such proceedings as he
shall think fit in the name of the Customer or otherwise,
including proceedings for the compulsory winding-up of the
Customer;
(ix) (COMPROMISE): to enter into or make any such agreement,
arrangement or compromise as he shall think fit and carry out and
enforce specific performance or otherwise obtain the benefit of
all contracts entered into or held by the Customer or entered
into in exercise of the powers hereby conferred:
(x) (INSURANCE): to insure any such assets or liabilities as he shall
think fit or as the Bank shall direct and to renew any
insurances;
(xi) (EMPLOYEES AND AGENTS): to appoint and employ such managers,
officers and workmen and engage such professional advisers as he
shall think fit including without prejudice to the generality of
the foregoing power to employ his partners and firm;
(xii) (RENT REVIEW): to operate any rent review clause in respect of
any property in respect of which he was appointed or any part
thereof and to apply for any new or extended tenancy;
(xiii) (TO BORROW): to raise or borrow money from the Bank or any other
person to rank for payment in prior to the security constituted
by this Security and with or without a mortgage or charge on the
Mortgaged Property or any part of it;
(xiv) (PERFORM COVENANTS): to do all things necessary to perform or
observe any of the covenants on the part of the Customer herein
contained;
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(xv) (INCIDENTAL POWER): to do all such other things as may seem to
him to be incidental or conducive to other power vested in him in
the realization of the security hereby constituted; or
(xvi) (DELEGATION): to delegate to any person for such time(s) as the
Bank shall approve any of the power conferred on him.
(4) CONSIDERATION ON SALE
(Receiver may accept various forms of consideration)
In making any sale or other disposal in the exercise of their respective
powers (including a disposal to any such body corporate as is mentioned in
this clause) a Receiver or the Bank may accept, as and by way of
consideration for such sale or other disposal, cash, shares, loan capital
or other obligations, including without limitation consideration
fluctuating according to or dependent upon profit or turnover and
consideration the amount of which is to determined by a third party.
(5) PAYMENT BY INSTALMENTS
(Consideration on sale may be by installments)
Any consideration for a sale or other disposal by a Receiver or the Bank
may be receivable in a lump sum or in installments, and upon receipt by the
Receiver or the Bank shall by virtue of such receipt be and become
chargeable with the payment of the Moneys Secured.
(6) PERSONAL LIABILITY OF RECEIVER
(Contracts may limit liability)
Any contract for any sale or other disposal by the Receiver or the Bank may
contain conditions excluding or restricting the personal liability of the
Receiver or the Bank to the full extent permitted by law.
(7) INVOLUNTARY LOSS
(Receiver not answerable for losses)
A Receiver shall not be answerable or accountable for any involuntary loss
happening in or about the exercise or attempted exercise of the powers
hereby conferred or for any more money than shall actually come to his
hands or for the negligence, default or dishonesty of any officer, servant,
agent or auctioneer.
(8) AGENT OF CUSTOMER
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(Receiver is Customer's agent)
Every Receiver so appointed shall be deemed at all times and for all
purposes to be the agent of the Customer and the Customer shall be solely
responsible for his acts and defaults and for the payment of his
remuneration. The appointment of a Receiver shall not render or deem the
Bank liable as a mortgagee in possession.
(9) REMUNERATION OF RECEIVER
(No maximum rate)
Every Receiver so appointed shall be entitled to remuneration for his
services at a rate to be fixed by agreement between him and the Bank (or,
failing such agreement, to be Fixed by the Bank) appropriate to the work
and responsibilities involved upon the basis of charging from time to time
adopted in accordance with his current practice or the current practice of
his firm and, to the extent that it is lawful so to provide, without being
limited to any maximum rate specified by law.
(10) ADVANCES
(Bank may advance moneys to Receiver)
The Bank may at the request of a Receiver advance to the Receiver such
moneys as the Bank thinks fit and all moneys so advanced shall be deemed
moneys advanced on account of the Customer and form part of the Moneys
Secured.
(11) REIMBURSEMENT
(Costs of receivership and enforcement are Moneys Secured)
All moneys and amounts paid or for which the Receiver or the Bank becomes
liable in the exercise of any of the powers conferred on each of them under
this Security or at law shall be reimbursed by the Customer on demand and
shall form part of the Moneys Secured.
(12) MONEYS PAID TO BANK
(Only moneys paid to Bank satisfy Moneys Secured)
Only moneys actually paid by any such Receiver to the Bank in satisfaction
or discharge of the Moneys Secured shall be capable of being applied by the
Bank in satisfaction thereof.
(13) BANK'S RIGHTS
(Bank may exercise Receivers powers)
Notwithstanding that a Receiver may or may not have been appointed it shall
be lawful for the Bank at any time after
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the Bank shall have become entitled to appoint a Receiver and without
giving any notice to exercise all or any of the powers authorities and
discretions which may be conferred on a Receiver under this Security.
14. APPLICATION OF MONEYS
(Order of application of moneys received under Security)
All moneys received by the Bank or a Receiver under or by virtue of this
Security shall be applied (subject to the claims of any secured and
unsecured creditors ranking in priority to this Security) in the following
order-
FIRST in or towards payment of all costs charges and expenses of and
incidental to the appointment remuneration and removal of any
Receiver and the exercise (including the attempted exercise) by
the Bank or a Receiver of all or any of the powers conferred by
this Security or by law;
SECONDLY in or towards payment of the Moneys Secured in such order or
manner as the Bank in its absolute discretion sees fit;
THIRDLY in or towards payment of moneys owing under or in respect of
subsequent mortgages and charges in the order of their respective
priorities; and
FOURTHLY in payment of any surplus to the Customer or other person
entitled to the Mortgaged Property;
and any such surplus does not carry interest and shall be deemed to have
been duly paid and the Bank shall have no further liability in respect of
such surplus if it is paid to the credit of a suspense or impersonal
account or an account in the name of the Customer or other person entitled
thereto in the books of the Bank whether specially opened for the Purpose
or otherwise and in applying any moneys in or towards payment of any of the
Moneys Secured the Customer shall be credited only with so much moneys
available for that purpose as has actually been received by the Bank and
with effect from but excluding the date of receipt.
15. POWER OF ATTORNEY
(1) JOINT AND SEVERAL ATTORNEYS
The Customer appoints tile following, namely -
(a) the Bank,
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(b) each officer of the Bank,
(c) each and every person to whom the Bank shall from time to time have
delegated the exercise of the power of attorney conferred by this
Clause, and
(d) any Receiver appointed under this Security and for the time being
holding office as such jointly and severally to be the attorney or
attorneys of the Customer and in the Customer's name and otherwise on
Customer's behalf and as the Customer's act and deed to sign, seal,
execute, deliver, perfect and do all other instruments (including
transfers and other instruments pursuant to the Torrens Statute), acts
and things that may be required (or which the Bank or any Receiver
appointed under this Security shall consider required for carrying out
any obligation imposed on the Customer by or pursuant to this Security
(including, without limitation, the obligations imposed on the
Customer pursuant to Clause 5), for executing, certifying as correct
or amending any documents to enable their registration, enforcing
settling, compromising and discharging any claim against any insurer
in the name of the Customer or the Bank or both and whether or not the
insurance covers other property as well as the Mortgaged Property, for
conveying or transferring any legal or other title or interest in land
and carrying any sale, lease or other dealing by the Bank or such
Receiver into effect getting in the Mortgaged Property, for
instituting proceedings with or defending any legal proceeding
(including arbitration) on behalf of the Customer in connection with
this Security or the Mortgaged Property and for executing and
appealing from judgments, and generally for enabling the Bank and the
Receiver to exercise the respective powers conferred on them by this
Security or by law.
(2) BANK'S POWERS
(Delegation not to preclude Bank's powers)
The Bank shall have full power to delegate the power conferred on it by
this Clause, but no such delegation by Bank to any person shall preclude
the subsequent exercise of such power by the Bank itself or any subsequent
delegation thereof by the Bank to any other person and the Bank may revoke
any such delegation at any time.
(3) RATIFICATION BY CUSTOMER
(Customer to ratify acts of attorneys)
The Customer shall ratify and confirm all transactions entered into by the
Bank, any officer of the Bank, any delegate of the
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Bank or such Receiver in the exercise or purported exercise of the Bank's
or such officer of the Bank or such delegate's or such Receiver's
respective powers and all transactions entered into, documents executed
things done by the Bank or such officer of the Bank or such delegate or
such Receiver by virtue of the power of attorney given by this Clause.
(4) IRREVOCABILITY
(Power of attorney irrevocable)
The power of attorney hereby granted is as regards the Bank. each officer
of the Bank, its delegates and any Receiver (and as the Customer hereby
acknowledges) granted irrevocably and for value as part of the constituted
by this Security to secure the proprietary interest of and the performance
of obligations owed to Bank.
16. PROTECTION OF PURCHASERS
(Purchasers not bound to inquire)
No purchaser, or other person dealing with the Bank or its delegate or any
Receiver appointed hereunder shall bound to see or inquire whether the
right of the Bank or such Receiver to exercise any of its or his powers has
or has become exercisable or be concerned with any notice to the contrary
or be concerned to see whether delegation by the Bank shall have lapsed
for any reason or been revoked and need not enquire as to the application
of any moneys paid to the Bank, any officer of the Bank, its delegate or a
Receiver and the receipt of the Bank, officer of the Bank, its delegate or
a Receiver is a good discharge on behalf of the Customer.
17. EFFECTIVENESS OF SECURITY
(1) OTHER SECURITY
(Not affected by nor to affect other security)
This Security is in addition to and does not prejudice, nor is it
prejudiced by, any other security which the Bank at any time hold for any
of the Moneys Secured, and no other security held by the Bank over the
whole or any of the Mortgaged Property is extinguished, postponed,
lessened or otherwise prejudicially affected by this Security or merges in
this Security.
(2) CONTINUITY
(Obligations remain in force notwithstanding discharge of Mortgaged
Property)
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This security shall remain in full force and effect as a continuing
security until discharged by the Bank. The Customer is not entitled to a
discharge of this Security at a time when there are, or it is reasonably
foreseeable that there are likely to be any moneys or amounts which fall
within the description of the Moneys Secured. The Bank may at any time in
its absolute discretion discharge the whole or any part of the Mortgaged
Property from the operation of this Security but such discharge shall not
relieve the Customer from the obligation to pay any moneys or amounts which
fall with the description of the Moneys Secured which may be outstanding at
the time of such discharge or in the future.
(3) BILLS AND OTHER SECURITY
(Not to affect bills or other securities)
Nothing contained in this Security or in any other security or Security
Instruments now or in the future held or taken by the Bank as security for
the payment of the Moneys Secured or any of them is intended to or shall
operate so as to, prejudice or affect any Security Instrument, bill, note,
mortgage, pledge, charge or other security of any kind whatsoever which the
Bank may have for the Moneys Secured or any of them or any right, remedy or
privilege of the Bank under any of them.
(4) BANKRUPTCY OR INSOLVENCY CLAIMS
(Void or voidable payments not to discharge liability of Customer)
Notwithstanding any discharge or partial discharge by the Bank of this
Security, if in relation to any payment made to the Bank of any sum of
money by or on behalf or on account of the Customer a claim is made by any
person under or by virtue of any law relating to bankruptcy or the
protection of creditors to the effect that the payment is void or voidable
and that claim is upheld by a court or is conceded or compromised by the
Bank in its unfettered discretion and without notice to the Customer then -
(a) (NO DISCHARGE): that payment (or such part of that payment as is
payable under the claim as so upheld. conceded or compromised) shall
be deemed not to have discharged a liability of the Customer under
this Security for its payment, and as between the Customer and the
Bank the payment to the Bank shall be deemed never to have been made;
(b) (RESTORATION OF SECURITY): where such a claim is upheld. conceded or
compromised the Customer shall, if required by the Bank, restore to
the Bank any security held by it from the Customer immediately prior
to such discharge or
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partial discharge and in addition to the other moneys recoverable by
the Bank under this Security the Customer shall be liable to pay to
the Bank on demand all costs and expenses whatsoever (including legal
costs and expenses as between solicitor and own client) incurred by
the Bank in or in connection with any negotiations or proceedings
relating to any such claim; and
(c) (AUTHORITY TO DEBIT ACCOUNT): the Bank may debit any account of the
Customer in the books of the Bank or any account of which the Customer
may be one of the proprietors with any sum which the Bank in its
opinion may be or become liable to pay as a consequence of any such
payment being void or voidable or any claim, being conceded or
compromised and the amount of any such debit shall be binding on the
Customer and shall form part of the Moneys Secured.
(5) CONTINGENT LIABILITIES
(Payment of maximum amount of contingent liability to trustee)
Where this Security purports to make an amount payable on demand or refers
to payment to the Bank of moneys which include an amount and in either case
that amount represents a contingent or prospective liability or any other
liability that cannot be quantified or may not become payable -
(a) (SELECTION OF TRUSTEE): the Customer (with the prior written consent
of the Bank), the Bank or a Receiver (as the case may be) may select a
trustee approved by the Bank;
(b) (CONSENT): the Bank shall not unreasonably refrain from giving its
consent to selecting or from approving a proposed trustee selected by
the Customer or a Receiver;
(c) (PAYMENT TO TRUSTEE): the Customer, the Bank or the Receiver (as the
case may be) may pay to the trustee a fund equal to the maximum amount
of the contingent, prospective, unquantifiable or uncertain liability
that is reasonably foreseeable at the time of payment;
(d) (DISCHARGE): subject to Clause 17(4) and to Clause 17(5)(c), payment
to the trustee operates as a complete discharge to the Customer in
respect of that liability, and
(e) (SATISFACTION OF LIABILITY): the trustee shall hold the fund on trust
to satisfy the liability from time to time out of the fund and to pay
the balance (if any) when the
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liability has ceased or been satisfied in the same manner as is
provided in Clause 14.
18. REMEDIES, TIME OR INDULGENCE
(1) CUMULATIVE RIGHTS
(Additional to other rights)
The rights, powers and remedies provided by this Security to the Bank are
cumulative and are not, nor are they to be construed as, exclusive of any
rights, powers and remedies provided by law.
(2) FAILURE TO EXERCISE RIGHTS
(No waiver)
No failure of the Bank to exercise, or delay by the Bank in exercising, any
of the rights (including, but not limited to the right to make demand),
powers, discretions and remedies provided by this Security or by law
(collectively the "Bank's Rights") shall operate as a waiver of any of
them, nor shall any single or partial waiver of any of the Bank's Rights
preclude any further or other exercise of that one of the Bank's Rights
concerned or the exercise of any of the Bank's Rights.
(3) WAIVER IN WRITING
(Writing required for waivers)
Any waiver or consent by the Bank under this Security is effective only if
in writing signed by the Bank or an of the Bank and then only to the
extent expressly stated in such writing.
(4) NOTICE OF THIS SECURITY NOT REQUIRED
(Bank not bound to notify others of Security)
It shall not be incumbent on the Bank to give notice of this Security to
any person nor to exercise any power or authority contained or implied in
this Security or vested in the Bank under this Security or by law nor shall
Bank be answerable or accountable for any loss occasioned by its omission
or delay so to do or for any loss happening in or about or occasioned by
the exercise or execution or a partial or attempted exercise or execution
of any power or right or authority or any trust connected therewith nor for
any other involuntary loss howsoever the same may be incurred (and whether
through negligence or otherwise).
19. ACCOUNTS
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(1) NEW ACCOUNT
(Opening up a new account on subsequent charge)
If the Bank at any time receives notice of any subsequent mortgage,
assignment, charge or other interest affecting the whole or any part of the
Mortgaged Property, the Bank shall be entitled to open a new account or
account for the Customer in its books and if the Bank does not in fact do
so then (unless the Bank gives express written notification to the Customer
that it has not done so) as from the time when the Bank received such
notice all payments made by the Customer to the Bank shall (in the absence
of any express appropriation to the contrary by the Customer to have
treated as having been credited to such new account of the Customer and not
as having been applied in reduction of the Moneys Secured outstanding at
the time of receipt of such notice by the Bank.
(2) SUSPENSE ACCOUNT
(Moneys may be credited to suspense account)
All moneys received, recovered or realized by the Bank under or pursuant to
this Security (including the provision of any conversion of currency) may
be credited, at the discretion of the Bank to any suspense or impersonal
account and may be held in such account for so long as the Bank thinks fit
(with interest accruing thereon at such rate as the Bank considers fit)
pending their application at such time or times as the Bank may decide in
the discharge of Moneys Secured or any of them.
(3) COMBINING ACCOUNTS
(Bank may combine accounts)
If the Customer has two or more accounts with the Bank, the Bank may at any
time without notice to any person combine any such two or more accounts of
the Customer with the Bank.
(4) SET-OFF
(Bank has right of set-off)
The Bank may set off or transfer any sum standing to the credit of any one
or more accounts with the Bank of the Customer or any person liable jointly
with the Customer in or towards satisfaction of any of the Liabilities of
the Customer to the Bank on any other account or in any other respect.
(5) BANK'S RIOTS
(Bank's rights are exercisable notwithstanding previous dealings or this
Security)
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The Bank's rights under this Clause shall exist and be exercisable whether
or not the Bank has agreed to permit a set-off for the purpose of
calculation of interest between any two or more accounts and
notwithstanding any course of dealing between the Customer and the Bank and
notwithstanding anything in this Security or that the Money Secured may be
or may be expressed to be advanced on any specified account or on two or
more accounts or that the accounts are with different branches of the Bank
of that any one account or more stand in credit.
(6) BANK MAY TREAT COMBINED ACCOUNTS AS ONE
(Bank may decline to honour outstanding instruments)
Upon a combination of accounts the Bank may decline to pay any cheque or
other order or instrument, make advances or meet any obligations to for or
for the accommodation of or on behalf of the Customer as if the combine
accounts had at all times been conducted as a single account.
(7) LIABILITIES
(All types of liabilities covered)
The liabilities referred to in this Clause may be actual, contingent,
prospective, primary, collateral, several or joint liabilities, and the
accounts, sums, and liabilities referred to in this Clause may be
denominated in any one or more currencies.
20. CURRENCY CONVERSION AND EXCHANGE RISK
(1) CURRENCY CONVERSION
(Bank may convert any sum into another currency)
Where it is accessary pursuant to this Security or where in the Bank's
opinion it is necessary or desirable for any purpose connected with or
arising out of this Security to convert a sum of money expressed in one
currency ("First Currency") into a sum expressed in another currency
("Second Currency") the rate of conversion to be used will be the rate at
which the Bank would have been able to purchase the Second Currency with
the First Currency on the date of conversion for value the same day in the
market for foreign currency in Sydney including any premium.
(2) EXCHANGE RISK
(Customer indemnifies Bank against exchange risk)
If any sum due from the Customer under this Security or any order or
judgment given or made in relation to this Security has to be converted
from one currency ("First Currency") into another currency ("Second
Currency") for the purposes of:
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(a) making or Ming a claim or proof against the Customer;
(b) obtaining an order or judgment in any court or other tribunal; or
(c) enforcing any order or judgment given or made in relation to this
Security;
the Customer shall, indemnify and hold harmless the Bank from and against
any loss suffered as a result of any discrepancy between:
(d) the rate of exchange used for such purpose to convert the sum from the
First Currency into the Second Currency, and
(e) the rate of exchange determined in accordance with Clause 20(1) of
this Security to convert the sum from the First Currency into the
Second Currency on the date of receipt of a sum paid to it in
satisfaction, in whole or in part, of any such order, judgment, claim
or proof.
(3) INDEPENDENT OBLIGATION
(Indemnity given is independent obligation)
The indemnity in Clause 20(2) of this Security constitutes a separate and
independent obligation of the Customer, applies irrespective of any time,
waiver or other indulgence granted by the Bank, and survives the
termination of this Security.
(4) EXTENT OF ANY DISCHARGE
(No discharge except to extent of currency purchased)
The purported payment of any Moneys Secured in a currency other than the
currency in which those Moneys Secured are agreed to be due and payable
shall not discharge such Moneys Secured except to the extent of the amount
of the currency agreed to be due and payable which the Bank actually
receives as a result of the purchase of the currency agreed to be due and
payable with the amount of the currency received by the Bank.
21. NOTICES
(1) SIGNATURE OF NOTICES
(Officer of Bank or solicitor may sign)
Any notice, certificate or demand which the Bank desires or is required to
give to or make upon the Customer for any purpose in connection with this
Security may be signed for and on behalf of the Bank by any officer of the
Bank or by any solicitor for the time being acting for the Bank, whose
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signature may be handwritten or printed or otherwise reproduced by
mechanical means.
(2) SERVICE
(Additional methods of service)
In addition to the sufficient methods of service provided for by statute
any notice, certificate or demand by the Bank shall be deemed to be duly
given to or made upon the Customer if:-
(a) left for the Customer, or sent by prepaid post or by telex, lettergram
(telegram) or facsimile transmission to the Customer, at:
(i) its address set forth herein;
(ii) the Customers registered office or any one of its principal
places of business in any State or Territory of the Commonwealth
of Australia or elsewhere; or
(iii) any premises owned or occupied by the Customer,
(b) delivered personally to any officer of the Customer or
(c) advertised in the government gazette of the state, country or place in
which this Security is executed by the Customer.
(3) VALIDITY OF SERVICE
(Due service)
Any such method of service shall be valid, effectual and sufficient
notwithstanding that:-
(a) at the date of service the Customer may be insolvent, or should be in
receivership or liquidation or provisional liquidation), whether
voluntary or compulsory, or under official management;
(b) The Customer shall not receive or read such notice, certificate or
demand; or
(c) where such notice, certificate or demand is sent by post or lettergram
(telegram) it is returned to Bank through the post office unclaimed;
and notwithstanding any other matter or event whatsoever.
(4) DEEMED RECEIPT
(When received)
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Any such notice, certificate or demand shall be deemed to have been
received by the Customer:-
(a) if left or delivered personally, on the same day;
(b) if sent by post, on the second business day (in the place to which it
is addressed) after the date of posting
(c) if sent by telex, upon receipt of the Customer's answerback code;
(d) if sent by lettergram (telegram), on the next business day (in the
place to which it is addressed) after dispatch
(e) if sent by facsimile transmission, upon despatch: and
(f) if advertised, on the date of publication of the relevant gazette.
(5) CERTIFICATES
(Certification of service)
A certificate signed by an officer of the Bank or by any solicitor for the
time being acting for the Bank as to time and manner of giving or making
such notice, certificate or demand shall be conclusive evidence thereof.
(6) DEEMED SERVICE
(Where two or more persons as the Customer)
Where more than one person is named as the Customer, any demand,
certificate or notice served on one of them (or deemed to have been so
served) shall be regarded as effectively served on the other or others of
them.
22. DEALINGS WITH PRIOR MORTGAGEES
(1) PRIOR MORTGAGES
(Sale may be subject to or discharged from prior mortgages)
Any sale by the Bank or a Receiver appointed hereunder may be made either
subject to or discharged from any prior mortgage or other security and the
Bank or such Receiver may settle and pass the accounts of any person in the
prior mortgage or other security may for the time being be vested.
(2) CUSTOMER BOUND BY SETTLED ACCOUNTS
Any account so settled and passed shall as between the Bank (or, as the
case may be, the Receiver) on the one hand and the
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Customer on the other hand be deemed to be properly settled and passed and
shall be binding on the Customer accordingly.
(3) REDEMPTION OF PRIOR MORTGAGES
(Bank may redeem or pay out prior mortgage)
If any person or persons entitled to the benefit of any prior mortgage or
other security ranking in point of security in priority to this Security
shall call in the moneys thereby secured or shall take any step to enforce
the same the Bank may thereupon, by agreement or in exercise of its
statutory power, either redeem such mortgage or other security or make
payment of such moneys and take a transfer of the benefit thereof, and the
money so expended by the Bank (including all costs of and incidental to any
such transaction) shall be reimbursed by the Customer to Bank on demand and
shall (but only if the Bank shall so elect in a case where the Bank has
taken such a transfer so secured hereby and be added to and form part of
the Moneys Secured. The Customer will upon the written request of the Bank
made at any time execute in favour of the Bank and at the cost of the
Customer all such deeds or other documents as the Bank may require in order
to have any mortgage or security transferred to the Bank pursuant to this
Clause 22(3) registered or for more perfectly assuring or securing the
property secured thereby in favour of the Bank. The Customer authorises the
Bank to complete any mortgage or security transferred to the Bank pursuant
to this Clause 22(3) by filling in blanks and correcting mistakes in order
to make it conform to the contractual intention of the parties or to supply
immaterial deficiencies, and in particular, to insert details of any dates
or amounts left blank when the Customer executed it and to certify as
correct for the purpose of registration in respect of any registering
authority.
23. PROVISIONS SEVERABLE
(Power to sever)
Each of the provisions contained in this Security shall be severable and
distinct from one another and if at any time any one or more such
provisions is or becomes invalid, illegal or unenforceable, the validity,
legality and enforceability of each of the remaining provisions of this
Security shall not in any way be affected, prejudiced or impaired thereby.
24. THE BANK'S DISCRETIONS
(1) NO OBLIGATION TO EXERCISE RIGHTS
(Bank under no obligation to exercise rights)
Any power, remedy, right or privilege which may be exercised or any
determination which may be made hereunder by the Bank
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may be exercised or made or declined to be exercised or made in the
absolute and unfettered discretion of the Bank. The Bank shall not be under
any obligation to do so or to give reasons therefor and the Bank is not
liable or accountable for any loss occasioned by or arising out of or in
connection with its omission to exercise any power right or authority or to
make any determination or any delay in exercising any power right or
authority or making any determination or the exercise or partial exercise
of any power, right or authority or the performance of any trust connected
therewith.
(2) OTHER SECURITY
(Bank not under obligation to resort to other security)
The Bank is not under any obligation to resort to any other security or
guarantee it may hold for the Moneys Secured or any part thereof in
priority to this Security or any other security and, subject to the
mandatory requirements of any applicable law, the Customer may not require
the Bank to marshall or consolidate this Security with any other security
or any other security with this Security.
(3) NEGOTIABLE INSTRUMENTS
(Bank may make demand notwithstanding bills are outstanding)
The Bank may make demand under this Security notwithstanding the currency
of a negotiable instrument and any demand made under this Security may
include the amount of any bills of exchange, promissory notes or other
negotiable instruments in respect of which the Customer may be liable to
the Bank notwithstanding that those instruments may not then have matured.
(4) MEETINGS OF CUSTOMER
(Officer of Bank may attend meetings)
The Bank, through any officer of the Bank, may attend all meetings of the
directors of the Customer and all general meetings of the Customer and may
speak at those meetings, if the officer of the Bank thinks fit and, if
required by the Bank, the Customer will procure its articles of association
to be amended to give effect to this Clause.
25. ASSIGNMENT
(1) BANK'S RIGHT OF ASSIGNMENT
(Bank may assign Security)
The Bank shall have a full and unfettered right to assign the whole or any
part of the benefit of this Security free of any equity, set-off or
counterclaim and the expression the "Bank"
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wherever used in this Security shall be deemed to include the assignees and
other successors, whether immediate or derivative, of the Bank, who shall
be entitled to enforce and proceed upon this Security in the same manner as
if named as the Bank under this Security.
(2) BANK'S RIGHT TO GIVE INFORMATION
(Bank may inform assignee)
The Bank shall be entitled to impart any information concerning the
Customer to any such assignee or other successor or proposed assignee or
successor as well as to any body corporate which is a related body
corporate of the Bank within the meaning of the Corporations Law (or which
would be so related if it applied to determine the question).
26. CUSTOMER AS SURETY
The following provisions of this Clause apply where the liability of the
Customer to the Bank is that of surety for the obligations of another
person or persons (each a "Principal Debtor"):
(1) LIABILITY OF CUSTOMER
(Liability of Customer not to be affected by variation in principal
liability)
The liability of the Customer hereunder shall not be impaired, released,
discharged or otherwise affected by any act, event or omission which might
otherwise have that effect at law or in equity including without limiting
the generality of the foregoing, any one or more of the following -
(a) (VARIATION OF FACILITY): any determination, variation or increase by
the Bank of any credit or facilities to any Principal Debtor; or
(b) (GRANT OF TIME): the grant by the Bank to any Principal Debtor or any
other person of any time, credit, indulgence or concession; or
(c) (DEALINGS WITH SECURITIES): any dealing with, or exchange, renewal,
variation, release, or modification, abstention from perfecting or
enforcing any securities or rights which the Bank may now or hereafter
acquire with respect of the Moneys Secured; or
(d) (RENEWAL OF BILLS): the renewal by the Bank of any bills, promissory
notes or other negotiable instruments or Security Instruments: or
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(e) (DEALINGS WITH OTHER SECURITIES): any compounding, compromise.
discharge. release, abandonment, variation, relinquishment, renewal or
transfer in whole or part of, or other dealing with this Security or
Security Instruments or of the indebtedness or liabilities of any
Principal Debtor or other person or guarantor to the Bank or by any
neglect or omission of the Bank to enforce any of its rights against
any of them; or
(f) (ABSTINENCE FROM CLAIM): the Bank's abstaining from proving or
maintaining any right or proof or from enforcing payment of any
dividend or composition; or
(g) (FAILURE TO OBTAIN OTHER SECURITY): the Bank's obtaining or failure to
obtain any other guarantee (whether contemporaneously with this
Security or otherwise) or the failure or refusal of any person to
provide other security, or
(h) (APPLICATION OF ADVANCES): the Bank's agreeing with any Principal
Debtor at any time as to the applicability if any advances or other
accommodation; or
(i) (DEATH OR BANKRUPTCY): the death, incapacity, official management,
liquidation, receivership, bankruptcy, or insolvency of any Principal
Debtor any guarantor, co-surety or any other person; or
(j) (COMPOSITION): the Bank becoming a party to or bound by any compromise
or assignment of property or arrangement or composition of debts or
scheme of reconstruction by or relating to any Principal Debtor in any
capacity, any guarantor, co-surety or any other person; or
(k) (DEFECTIVE SECURITY): any security held or taken at any time by the
Bank being void. defective or inform; or
(l) (LOSS OF SECURITY): any property the subject of a security being
forfeited, extinguished, surrendered, or determined.
(2) SEVERAL CUSTOMERS
(Discharge of one Customer not to affect liability of others)
Where two or more persons are named in this Security as the Customer no
release, discharge, composition or arrangement between the Bank and any one
or more of those persons shall release or discharge, or prejudice, or
otherwise affect, the Bank's right and remedies hereunder against any other
of those persons.
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(3) CUSTOMER'S CLAIMS
(Customer not to make claims unless Moneys Secured paid in full)
Until the Moneys Secured have been paid or discharged in full and the Bank
is satisfied that it will not be under liability to repay any of them on
the ground of preference or otherwise and notwithstanding any payment of
money recoverable from the Customer under this Security or any purported
release or cancellation of this Security the Customer will not by virtue of
such payment or by any other means or on any other ground, except with the
prior written consent of the Bank or as provided below -
(a) claim any set-off or assert any counterclaim against any Principal
Debtor in relation to any liability of Customer to that Principal
Debtor, or
(b) make or enforce any claim or right against any Principal Debtor or
prove in competition with the Bank, in respect of any payment
hereunder made by the Customer or otherwise; or
(c) be entitled to claim or have the benefit of, any set-off, counterclaim
or proof against, or dividend, compos or payment by, any Principal
Debtor or any Principal Debtor's estate; or
(d) be entitled to claim or otherwise obtain the benefit of any security
or guarantee or indemnity at any time by the Bank for or in respect of
any of the Moneys Secured or be entitled to assert against the Bank
any of subrogation in respect of any moneys paid to the Bank; or
(e) claim or enforce any right of contribution against any co-surety.
(4) BANKRUPTCY OR WINDING-UP OF PRINCIPAL DEBTOR
(Customer to exercise rights if required by Bank)
If the Customer shall have any right of proof in the bankruptcy or winding-
up of any Principal Debtor which will not derive from a payment made
hereunder, the Customer shall (except where the Bank otherwise requires)
exercise that right and shall (except as aforesaid) claim any related right
of contribution from any co-surety.
(5) PAYMENT IN GROSS
(All payments received by the Bank deemed to be payments in gross)
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All moneys from time to time received by the Bank in reduction of the
indebtedness of any Principal Debtor to Bank or from any co-surety shall be
regarded as payment in gross without any right on the part of the Customer
stand in place of the Bank in respect of or to claim the benefit of any
moneys so received as against any Principal Debtor until the whole of the
indebtedness of that Principal Debtor has been paid or satisfied and so
that in the event of the Customer going into liquidation, official
management or bankruptcy, the Bank shall be entitled to prove the total
indebtedness of that Principal Debtor in relation to the Moneys Secured
(including for all moneys which the Customer has paid hereunder) and to
retain and carry to a suspense account and appropriate at the discretion of
the Bank any amounts received until the Bank has been paid one hundred
cents in the dollar in respect of the Moneys Secured.
(6) MONEYS RECEIVED BY CUSTOMER
(Moneys or property received by Customer to be held in trust for Bank)
If while the Customer shall remain under any liability to the Bank under
this Security any moneys or other property or assets shad be received by
the Customer in consequence of anything done with the consent of the Bank
or in pursuance of any of the other provisions of this Clause or in breach
of any such provisions, such moneys, other property or assets shall be held
upon trust to pay or transfer the same to the Bank to the extent of such
liability.
(7) REFERENCE TO DEBTOR
(Extension of "Moneys Secured")
Each reference to the Customer in paragraphs 2(1)(a), (b), (c), (d), (c),
(f) and (g) and in Clause 3, shall also be read as a reference to each
Principal Debtor.
27. CUSTOMER AS TRUSTEE
(Certain provisions to apply if Customer is trustee)
(1) APPLICABILITY
The following provisions of this clause apply if the Customer gives this
Security as trustee of the Trust.
(2) UNDERTAKINGS BY CUSTOMER
The Customer:
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(a) (BINDING SECURITY): acknowledges and agrees that this Security is
binding on it personally and in its capacity as trustee of the Trust,
(b) (SUCCESSOR TRUSTEE): shall cause any successor of the Customer as
trustee of the Trust to execute such documents as the Bank may require
to ensure that this Security is binding on such successor, and
(c) (RIGHT OF INDEMNITY): upon the floating charge created by this
Security becoming a fixed charge and on demand by the Bank, shad
exercise its rights of indemnity in relation to the Trust Fund and its
rights against the beneficiaries to cause payment of the Moneys
Secured to the Bank or otherwise hold such rights for the Bank.
(3) REPRESENTATIONS AND WARRANTIES
The Customer represents and warrants in respect of each Trust that:
(a) (SOLE TRUSTEE): the Customer is the sole trustee of the Trust and no
action has been taken to remove or replace it;
(b) (PARTICULARS): full particulars of the terms of the Trust have been
disclosed to the Bank prior to the execution of this Security;
(c) (TRUST DOCUMENTS): the copies of the Trust Deed constituting the Trust
and any other documents relating to the Trust and the Memorandum and
Articles of Association of the Customer delivered to the Bank before
the Customer executed this Security are true copies of those documents
as in force at the date of this Security;
(d) (POWER): the Customer has power under the Trust Deed to execute and
perform its obligation under this Security, and all necessary action
has been taken to authorises the execution and performance of this
Security under the Trust Deed and the Memorandum and Articles of the
Customer;
(e) (BENEFIT): this Security is executed and all transactions secured by
this Security are or will be entered into as part of the due and
proper administration of the Trust and are or will be for the benefit
of the beneficiaries;
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(f) (RIGHT OF INDEMNITY): the Customer has a right to be fully indemnified
out of the Trust Fund and no action has been taken to restrict or
limit that right;
(g) (DEFAULT): the Customer is not in default under the Trust Deed; and
(h) (VESTING DATE): no vesting date for the Trust Fund has been
determined,
and further warrants that each of the above warranties will remain true as
long as this Security remains in force.
(4) BENEFICIARIES' CLAIMS
The Banks rights under this Security shall rank in priority to the claims
of beneficiaries to the Trust Fund.
(5) DISTRIBUTION OF INCOME
(Distribution of income allowed)
Nothing in this clause shall prevent the Customer from distributing the
income (but not the capital) of the Trust Fund in accordance with the Trust
Deed until the Bank by written notice directs the Customer not to make such
distributions or until this Security becomes immediately enforceable,
whichever occurs first.
(6) NEGATIVE COVENANTS
Except with the prior written consent of the Bank:
(a) the Trust Deed shad not be altered;
(b) the Customer shall not retire as trustee of the Trust. nor shall any
new or additional trustee be appointed; and
(c) the Customer shall not default in its duties as trustee of the Trust.
(7) SUCCESSORS
In this Security references to the Customer include the Customer's
successors as trustee of the Trust.
28. PARTNERSHIP
(Security not to be affected by changes in partnership)
Where this Security is given in respect of the indebtedness of a
partnership this Security shall continue to notwithstanding
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any changes which may from time to time take place in the constitution of
the part notwithstanding that the partnership ceases to carry on business,
and shall continue to bind the notwithstanding that the Customer is not a
member of the partnership or having once been a partnership the Customer is
no longer a member thereof.
29. RESUMPTION
(1) CLAIM FOR COMPENSATION
(Bank entitled to claim compensation)
If the Mortgaged Property or any part thereof is or is proposed to be
resumed or acquired by the government or public authority or the use to
which the Mortgaged Property or any part thereof may lawfully be put is or
to be altered the Customer shall notify the Bank forthwith and, if
requested by the Bank, shall at the expense claim or join with the Bank in
making claim for all or any moneys which may become payable purchase money
or compensation or otherwise in respect of the Mortgaged Property and in
making app consent or permission to use the Mortgaged Property for such
purposes as the Bank may think appropriate.
(2) COMPROMISE OR SETTLEMENT
(Bank to approve compromise or settlement)
The Customer shall not without the consent and approval in writing of the
Bank compromise agree or the purchase money or compensation or any
proportion thereof payable in respect of any such acquisition or execute
any releases therefor notwithstanding anything in any statute under which
any purchase money or compensation may be payable.
(3) COMPENSATION RECEIVED
(Customer to hold compensation in trust for Bank)
If the Customer receives any purchase moneys or compensation as a result of
any exercise by any government or any public authority of any power under
any law or by reason of or as a result of some right to receive or purchase
moneys having arisen, then such moneys shall be held by the Customer on
trust for the application in or towards payment of the Moneys Secured and
shall be paid to the Bank forthwith upon.
30. MORATORIUM
(Moratorium laws do not apply)
Any existing or future moratorium legislation or regulations shall have no
application to this Security or to the Secured and such legislation and
regulations, are hereby expressly
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excluded from applying to this Security Moneys Secured to the full extent
permitted by law.
31. COVENANT FOR TITLE AND OTHER REPRESENTATIONS AND WARRANTIES
(1) GOOD TITLE
The Customer covenants that it has good right, title and authority to
charge the Mortgaged Property in the contemplated by this Security free of
any encumbrance except any Permitted Prior Charge.
(2) REPRESENTATIONS AND WARRANTIES
The Customer represents and warrants that:
(a) (POWER): the Customer has power to enter into and observe its
obligations under this Security,
(b) (AUTHORISATIONS): the Customer has the reports and evaluations and has
in full force and effect and authorisations necessary to enter into
this Security, observe obligations under it, allow it to be enforce
enable the Customer to carry on any undertaking or activity
contemplated by any purpose agreed by to be the purpose for which the
Moneys Secured are provided.
(c) (ENFORCEABILITY): the Customer's obligations under this Security are
valid, binding and are enforceable it in accordance with its terms;
(d) (CONSTITUENT DOCUMENTS): this Security and the transactions under it
do not contravene the Customer constituent documents or any law,
regulation or official directive or any of the obligations or
undertaking which the Customer or any assets of the Customer are bound
or cause a limitation on the Customer's or the powers of its directors
to be exceeded;
(c) (DISCLOSURE): the Customer has fully disclosed in writing to the Bank
all facts relating to the Customer, this Security, the Mortgaged
Property and anything in connection with them which are material to
the assessment of the nature and amount of the risk undertaken by the
Bank in providing any of the Moneys Secured or accepting this Security
as security for doing so or which are material to establishing the
form of any notifications to be lodged in any official register in
connection with this Security or the Mortgage Property;
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(f) (EVENTS OF DEFAULT): no event mentioned in Clause 3 has occurred which
continues to be unremedied; and
(g) (MATERIAL DEFAULT): to the best of the knowledge information and
belief of the Customer, the Customer is not in material default under
any material agreement binding on the Customer and no action, suit,
proceedings, litigation or administrative proceeding before any court,
board or arbitration or administrative body is presently in course or
pending or threatened which would have a material adverse effect on
the business, assets or financial condition of the Customer or which
brings into question the validity of this Security or the Bank's right
to recover any of the Moneys Secured,
and the Customer covenants that each of these representations and
warranties is true and correct at the date of execution by the Customer of
this Security
32. BANKING DAYS
(Payments to be on Banking Days)
When any day specified in this Security or in any notice or demand made
under or in relation to this Security for the payment of any moneys or the
performance of any act is not a Banking Day the payment shall be made or
the act performed on the Banking Day next preceding that day.
33. PAYMENTS FREE OF DEDUCTION
(All payments to be free of deductions or to be grossed up)
(1) NO DEDUCTIONS
All payments to be made under this Security shall be made free and clear of
and without deduction for taxes, levies, imposts, duties, charges, fees or
withholdings of any nature whatsoever now or hereafter imposed by any
governmental, fiscal or other authority.
(2) GROSS-UP
If the Customer shall at any time be compelled by law to deduct or withhold
any amount from any payment to be made under this Security the Customer
will concurrently pay to the Bank such additional amounts as will result in
payment to the Bank of the full amount which would have been received if
such deduction or withholding had not been made. If due to any statutory
provision the Customer is not obliged to pay such additional amounts, the
Customer shall not be obliged to pay them under this Security but the Bank
may then demand payment
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of the Moneys Secured as if such non-payment were an event mentioned in
Clause 3.
34. LAW AND JURISDICTION
(See Schedule for law and jurisdiction)
This Security shall be governed by and construed in accordance with the
laws of the place named in Item 4 of the Schedule and the Customer hereby
irrevocably submits to the non-exclusive jurisdiction of the courts of that
place.
35. PRIORITY AMOUNT
(Maximum prospective liability specified in Schedule)
For the purpose only of Fixing priorities in accordance with Section 282 of
the Corporations Law between this Security and any other charge given by
the Customer and without affecting any obligation of the Customer under
this Security, the prospective liabilities secured by this Security
include, without limitation, the prospective liabilities identified in
paragraph (1) of Item 3 of the Schedule and the maximum prospective
liability secured by this Security is the amount specified in paragraph (2)
of Item 3 of the Schedule.
36. SUSPENSION OF CHARGE
(1) SUSPENSION
(Suspension because of conditional prohibition by law)
If, without any consent, approval, notification or condition or other
required action being obtained, made, satisfied or carried out, a law
prohibits any property or asset of the Customer from being charged or
provides that if such property or asset is charged, this Security is void,
voidable or unenforceable:
(a) this Security shall not operate to charge any such property or asset
of the Customer in each such case unless and until the consent,
approval, notification or condition or other required action has been
obtained, made, satisfied or carried out with respect to the property
or asset concerned; and
(b) the Customer will diligently make all applications, pay all costs and
expenses and do all things necessary to obtain or have made, satisfied
or carried out any consent, approval, notification, condition or other
action referred to in the preceding paragraph (a).
(2) PROHIBITED CHARGES
(Suspension because of absolute prohibition by law)
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Subject to sub-Clause 36(1), this Security shall not operate to charge any
property or asset of the Customer absolutely prohibited by law from being
charged in the manner contemplated by this Security or which, by this
Security, would cause this Security to be absolutely void, voidable or
unenforceable.
(3) CERTAIN CLAUSES TO APPLY
(Certain Clauses to apply to property not charged)
Notwithstanding sub-Clause 36(1) and (2), any reference in Clauses 3, 6, 7,
3, 29 and 31 of this Secured Mortgaged Property shall include any property
or asset which is not, or which is not for the time being, a result of this
Clause 36.
(4) NO PREJUDICE TO SECURITY
(Operation of Security not to be prejudiced)
Nothing in this Clause 36 shall prejudice the operation of this Security on
any property or asset of the Customer otherwise referred to in sub-Clause
36(1) or (2).
37. COUNTERPARTS
(Counterparts constitute one instrument)
This security may consist of a number of counterparts and such counterparts
taken together constitute one same instrument.
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SCHEDULE
Item 1: Name and Address of Customer:
TOTAL ENERGY SYSTEMS LIMITED ACN 010 876 150 a company duly
incorporated according to law having its registered office at 3rd
Floor, Invicta House, 172 Edward Street, Brisbane Qld
Item 2: Permitted Prior Charges:
Nil
Item 3: (1) (Clause (35) - prospective liabilities)
The prospective liabilities secured by this deed include, without
limitation:
Omnibus Facility comprising a mix of Overdraft/Commercial Bill
Acceptance/Discount/Import Letter of Credit/Bills of Lading
Surrendered/Trade Bills Discounted/Cheque Encashment Letter of
Credit/Forward Exchange Cover Facilities under Facility Letter dated
30 January 1995.
(2) (Clause (35) - maximum prospective liability)
Maximum prospective liability is $10,00,000 (together with interest,
fees and expenses thereon or in connection therewith)
Item 4: Governing Law:
Queensland
Item 5: Trust Details:
(Complete only if this Security is given by the Customer as Trustee of
a Trust.)
Name of Trust: None disclosed
Description (including dates and parties) of all documents
establishing the Trust:
Description (including date and parties) of all amendments to the
documents establishing the Trust:
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