Exhibit 10.3
NESS SECURITY PRODUCTS PTY LIMITED
ACN 069 984 372
FAI INSURANCES LIMITED
ACN 004 304 545
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FIXED AND FLOATING CHARGE
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ATANASKOVIC HARTNELL
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LAWYERS - CORPORATE, FINANCE & TAXATION
Level 10
Atanaskovic Hartnell House
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DEED dated between:
1. NESS SECURITY PRODUCTS PTY LIMITED (ACN 069 984 372) of ▇▇▇▇ ▇, ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ("Mortgagor"); and
2. FAI INSURANCES LIMITED (ACN 004 304 545) of Level 42, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ("Mortgagee").
OPERATIVE PART
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
The following definitions apply unless the context requires otherwise.
"Attorney" means any attorney appointed under this Deed or any Collateral
Security.
"Borrower" means FAI Home Security Pty Limited (ACN ▇▇▇ ▇▇▇ ▇▇▇).
"Collateral Security" means any Security Interest, indemnity or other similar
surety or other document or agreement at any time created or entered into as
security for any Secured Money.
"Deed of Priority" means the deed of priority agreement between the Mortgagor,
the Mortgagee and Westpac Banking Corporation dated on or about the date of this
Deed.
"Facility Agreement" means the facility agreement between the Borrower and the
Mortgagee dated on or about the date of this Deed.
"Intellectual Property" means any intellectual or industrial property including
without limitation:
(a) a patent, trade mark or service mark, copyright, registered design, trade
secret, or confidential information; or
(b) a licence or other right to use or to grant the use of any of the foregoing
or to be the registered proprietor or user of any of the foregoing.
"Liquidation" includes official management, receivership, compromise,
arrangement, amalgamation, administration, reconstruction, winding up,
dissolution, assignment for the benefit of creditors, arrangement or compromise
with creditors, bankruptcy or death.
"Marketable Security" has the meaning given in the Corporations Law, but also
includes:
(a) a document referred to in the exceptions to the definition of "debenture"
in the Corporations Law;
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(b) a unit or other interest in a trust or partnership
(c) a negotiable instrument; and
(d) a right or an option in respect of a Marketable Security, whether issued or
unissued, including, without limitation, any of the above.
"Mortgaged Property" means the property mortgaged or charged by this Deed or any
Collateral Security granted by the Mortgagor.
"New Rights" means all assets, rights, powers and proceeds of any nature at any
time attaching to, or arising out of a holding in, any Marketable Securities
included in the Mortgaged Property. It includes:
(a) any Marketable Security, any right to take up Marketable Securities or any
allotment of further Marketable Securities;
(b) any Marketable Security resulting from the conversion, consolidation or
sub-division of a Marketable Security;
(c) any certificate or other evidence of title to a Marketable Security or to
anything specified in this definition; and
(d) any distribution or dividend under, and any proceeds of, or of the disposal
of, anything specified in this definition.
"Power" means a power, right, authority, discretion or remedy which is conferred
on the Mortgagee or a Receiver or Attorney:
(a) by this Deed or any Collateral Security; or
(b) by law in relation to this Deed or any Collateral Security.
"Receiver" means a receiver or receiver and manager appointed under this Deed or
any Collateral Security.
"Secured Money" means:
(a) all money which the Mortgagor (whether alone or with another person) is or
at any time may become actually or contingently liable to pay to or for the
account of the Mortgagee (whether alone or with another person) for any
reason whatever on any account whatsoever (it includes, without limitation,
money by way of principal, interest, fees, costs, indemnity, guarantee,
indemnity or other similar surety, charges, duties or expenses, or payment
of liquidated or unliquidated damages); and
(b) all obligations which the Mortgagor (whether alone or with another person)
is or at any time may become actually or contingently liable to perform for
or for the account of the Mortgagee (whether alone or with any other
person) for any
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reason and on any account whatsoever (it includes, without limitation,
payment of liquidated or unliquidated damages).
Where the Mortgagor would have been liable but for its Liquidation, it will be
taken still to be liable.
"Unpaid Capital" means any uncalled or unpaid share capital or premiums of the
Mortgagor.
1.2 Facility Agreement definitions
Definitions and rules of interpretation set out in the Facility Agreement apply
in this Deed unless the context requires otherwise or the relevant term is
defined in this Deed.
2. CHARGE
2.1 Charge
(a) The Mortgagor charges to the Mortgagee all its present and future assets
and undertaking including, without limitation, Unpaid Capital.
(b) The charge secures the due and punctual payment of the Secured Money.
(c) The charge is given in consideration of the Mortgagee entering the
Transaction Documents, providing or continuing to provide advances and
financial accommodation from time to time, or both, and for other valuable
consideration received.
2.2 Prospective liability
Subject to Clause 2.3, for the purposes of the Corporations Law the maximum
prospective liability (as defined in the Corporations Law) secured by this Deed
shall be limited to A$10,000,000. This shall not effect the amount actually
secured by or recoverable under this Deed.
2.3 Increase in prospective liability
The Mortgagee may from time to time lodge a notice under section 268(2) of the
Corporations Law on behalf of the Mortgagor specifying an increase in the
maximum prospective liability secured by this Deed. From the date of lodgement
the sum specified in Clause 2.2 will be taken to be varied to the sum specified
in the notice.
3. NATURE OF CHARGE
3.1 Priority
The charge ranks in the order contained in clause 3.1 of the Deed of Priority.
3.2 Nature of charge
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The charge operates:
(a) as a fixed charge as regards all present and future:
(i) freehold and leasehold property or any other interest in real
property;
(ii) Unpaid Capital;
(iii) machinery (other than stock-in-trade), plant, any item of equipment
having a value in excess of A$50,000 or its equivalent;
(iv) insurance policies, and all the proceeds of those policies;
(v) books of account, registers, minute books, statements, invoices,
accounting and other records (including those recorded
electronically) and all software;
(vi) interests in any partnership or joint venture;
(vii) Intellectual Property and goodwill;
(viii) Marketable Securities including the New Rights;
(ix) Authorisations;
(x) documents and agreements of any kind including without limitation,
the Transaction Documents;
(xi) book and other debts and the proceeds of those debts (other than
proceeds which may be dealt with by the Mortgagor under clause
3.6(a));
(xii) accounts opened in the name of the Mortgagor or for the benefit of
the Mortgagor under any Transaction Document;
(xiii) other assets that are not acquired for disposal in the ordinary
course of the Mortgagor's business,
and all right, title and interest of the Mortgagor in, under or derived
from, the above (except as expressly provided); and
(b) subject to clause 3.4 a floating charge over the balance of all other
assets charged.
All sub-paragraphs of paragraph (a) are to be construed independently. None
limits the generality of any other.
3.3 Dealing with Mortgaged Property
(a) Except with the prior written consent of the Mortgagee or as expressly
permitted in any Transaction Document, the Mortgagor shall not:
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(i) create or allow to exist any Security Interest over any Mortgaged
Property; or
(ii) agree to or allow any change to be made to the provisions of any
Marketable Security or any Transaction Document; or
(iii) in any other way:
(A) dispose of;
(B) create or allow any interest in; or
(C) part with possession of,
any Mortgaged Property, except, subject to the Transaction Documents,
any disposal of or dealing with any asset for the time being subject
to the floating charge in the ordinary course of its ordinary
business.
(b) Where by law the Mortgagee or a mortgagee may not restrict the creation of
any Security Interest over an asset ranking after the charge created by
this Deed, paragraph (a) will not restrict that creation, but the Mortgagor
shall ensure that before that Security Interest is created the holder of
that Security Interest enters into a deed of priority in form and substance
specified by the Mortgagee.
3.4 Crystallisation
The floating charge referred to in clause 3.2 will automatically and immediately
crystallise and operate as a fixed charge:
(a) in respect of any asset:
(i) on notice to the Mortgagor from the Mortgagee (which it may only give
after the occurrence of an Event of Default);
(ii) if without the prior written consent of the Mortgagee, the Mortgagor:
(A) creates or allows any Security Interest over;
(B) sells, leases or otherwise disposes of;
(C) creates or allows any interest in; or
(D) parts with possession of,
that asset in breach of a Transaction Document, or agrees or attempts
to do so or takes any step towards doing so;
(iii) on any step being taken with a view to levying or enforcing any
distress, attachment or other execution on that asset or to enforcing
any Security Interest in respect of that asset;
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(iv) on the Commissioner of Taxation or his delegate or successor signing
a notice under:
(A) s218 or s255 of the Income Tax Assessment Act 1936 (Cth) and the
Income Tax Assessment Act 1997 (Cth);
(B) s38 of the Sales Tax Assessment Act 1992 (Cth); or
(C) any similar legislation,
which will affect that asset; or
(v) on a Governmental Agency taking any step which may result in an
amount of Tax or an amount owing to a Governmental Agency ranking
ahead of the floating charge with respect to that asset; or
(b) in respect of all the Mortgaged Property:
(i) if the Mortgagor goes into Liquidation; or
(ii) on the security constituted by this Deed being enforced in any way.
Except where expressly stated, no notice or action by the Mortgagee is
necessary for the charge to crystallise.
3.5 De-crystallisation
By notice to the Mortgagor, the Mortgagee may at any time release from the fixed
charge any asset which has become subject to a fixed charge under clause 3.4.
That asset will then again be subject to the floating charge and to the further
operation of that clause.
3.6 Dealing with proceeds
(a) Subject to the Transaction Documents, the Mortgagor may deal with the
proceeds of any book or other debt as it thinks fit where:
(i) the book or other debt arose in the ordinary course of its business;
(ii) the proceeds do not arise from the disposal of, lease of, or grant of
any interest in, an asset the subject of the fixed charge;
(iii) the proceeds are received before the floating charge crystallises in
respect of all the Mortgaged Property and before anything described
in clause 3.4(a) occurs with respect to the debt or those proceeds;
and
(iv) no Transaction Document provides otherwise.
(b) Subject to the Transaction Documents, the Mortgagor shall ensure that:
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(i) all other proceeds of any book or other debt or proceeds paid to the
Mortgagor in relation to a Marketable Security; and
(ii) all the proceeds of any disposal of or other dealing with any asset
the subject of a fixed charge, which are not immediately applied in
acquiring another similar asset or in payment of the Secured Money or
moneys ranking ahead of the Secured Money,
are paid immediately into a separate account of which the Mortgagor has
notified the Mortgagee.
(c) The Mortgagor shall give notices and directions necessary or requested by
the Mortgagee to ensure paragraph (b) is complied with.
(d) Failure by the Mortgagee to require the Mortgagor to comply with this
clause will not constitute a waiver.
(e) Without prejudice to paragraph (d), if for any reason the Mortgagee waives
or is taken to have waived the requirements of this clause, the charge
created by this Deed will still operate as a fixed charge in respect of the
relevant debt or other asset which gives rise to the relevant moneys or
proceeds.
(f) In this clause "proceeds" includes moneys or consideration payable, whether
or not received by the Mortgagor.
4. COVENANT AND WARRANTY
4.1 Covenant to pay and perform
(a) The Mortgagor shall duly and punctually pay the Secured Money payable by
it. After an Event of Default (whether or not it subsists) it will:
(i) pay all Secured Money on demand; and
(ii) otherwise, do all that is required to reinstate the Mortgagee to the
position it would have been in if the Event of Default had not
occurred.
(b) The Mortgagor shall ensure that no Event of Default occurs. Without
affecting the liability of the Mortgagor or the Powers of the Mortgagee in
any other respect (including where a breach of this paragraph is also a
breach of another provision), the Mortgagor is not liable in damages for a
breach of this paragraph but the Mortgagee may exercise its Powers
following the breach.
(c) The Mortgagor shall duly and punctually comply with its obligations under
the Transaction Documents and ensure that:
(i) its and the Borrower's representations and warranties in the
Transaction Documents are true; and
(ii) the Borrower duly and punctually complies with its obligations under
the Transaction Documents.
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4.2 Warranty
The Mortgagor represents and warrants that all its representations and
warranties in the Transaction Documents are true or, if not yet made, will be
true when made.
5. FURTHER ASSURANCES
5.1 Further assurances
Whenever the Mortgagee requests the Mortgagor to do anything:
(a) for more satisfactorily mortgaging, assuring or securing the Mortgaged
Property to the Mortgagee or the Mortgagee's nominee in a manner not
inconsistent with this Deed or any Collateral Security; or
(b) for aiding in the execution or exercise of any Power'
the Mortgagor shall do it immediately at its own cost. It may include (without
limitation) registering this Deed, the execution or registering of any other
document or agreement, the delivery of documents or evidence of title and the
execution and delivery of blank transfers.
5.2 Interest in land
(a) Without limiting Clause 5.1, if requested by the Mortgagee, on acquiring
any interest in real property the Mortgagor shall execute a legal or
statutory mortgage over that interest securing the Secured Money in the
form and substance required by the Mortgagee. The Mortgagor shall use its
best endeavours to register that mortgage.
(b) The mortgage may not contain any obligation more onerous than in the other
Transaction Documents.
5.3 Title documents
Without limiting Clause 5.1, the Mortgagor shall immediately upon request by the
Mortgagee deliver to the Mortgagee all documents of title to interests in real
property or Marketable Securities received by it.
6. APPOINTMENT OF RECEIVER
6.1 Appointment
To the extent permitted by law, at any time after an Event of Default (whether
or not it is continuing) the Mortgagee or any Authorised Officer of the
Mortgagee may:
(a) appoint any person or any two or more persons jointly or severally or both
to be a receiver or receiver and manager of all or any of the Mortgaged
Property;
(b) remove any Receiver;
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(c) appoint another Receiver in addition to or in place of a Receiver; and
(d) fix or vary the remuneration of a Receiver (such amount not to exceed the
rate recommended by IPAA from time to time).
6.2 Agent of Mortgagor
Subject to Clause 6.4, every Receiver is the agent of the Mortgagor. The
Mortgagor alone is responsible for a Receiver's acts and defaults.
6.3 Receiver's powers
In addition to any powers granted by law, and except to the extent specifically
excluded by the terms of his appointment, every Receiver has power to do
anything in respect of the Mortgaged Property that the Mortgagor could do. His
powers include the following (without limitation).
(a) (Take possession and manage) He may take possession of, get in and manage
the Mortgaged Property.
(b) (lease) He may lease any of the Mortgaged Property for any term (whether
or not the Receiver has taken possession).
(c) (Carry on business) He may carry on or concur in carrying on any business.
(d) (Acquire any asset) He may acquire in any manner any asset (including,
without limitation, to take it on lease). After that acquisition it will
be included in the Mortgaged Property.
(e) (Maintain and improve the Mortgaged Property) He may do anything to
maintain, protect or improve any of the Mortgaged Property or to obtain
income or returns from any of the Mortgaged Property (including, without
limitation, by development, sub-division, construction, alteration, or
repair, of any property or by pulling down, dismantling or scrapping, any
property).
(f) (Raise money) He may:
(i) borrow or raise any money from any Mortgages or any other person
approved by the Mortgagee;
(ii) give Guarantee, indemnity or other similar sureties; and
(iii) grant any Security Interest over any of the Mortgaged Property to
secure that money or Guarantee, indemnity or other similar surety.
That Security Interest may rank in priority to or equally with or
after, the security created by this Deed. It may be given in the name
of the Mortgagor or otherwise.
(g) (Lend) He may lend money or provide financial accommodation.
(h) (Sell)
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(i) He may sell any of the Mortgaged Property (whether or not the
Receiver has taken possession).
(ii) Without limitation any sale may be made:
(A) by public auction, private treaty or tender;
(B) for cash or on credit;
(C) in one lot or in parcels;
(D) either with or without special conditions or stipulations as to
title or time or mode of payment of purchase money or otherwise;
(E) with power to allow the whole or any part of the purchase money
to be deferred (whether with or without any security);
(F) whether or not in conjunction with the sale of any property by
any person.
(i) (Options) He may grant or take put or call options.
(j) (Sever fixtures) He may sever fixtures.
(k) (Employ) He may employ or discharge any person as employee, contractor,
Mortgagee, professional adviser, consultant or auctioneer for any purpose.
(l) (Compromise) He may make or accept any arrangement or compromise.
(m) (Give receipts) He may give receipts for money and other assets.
(n) (Perform and enforce agreements) He may:
(i) perform or enforce;
(ii) exercise or refrain from exercising the Mortgagor's rights and powers
under; or
(iii) obtain the benefit in other ways of,
any documents or agreements or rights which form part of the Mortgaged
property and any documents or agreements entered into in exercise of any
Power.
(o) (Vary and terminate agreements) He may vary, rescind or terminate any
document or agreement (including without limitation surrender or accept the
surrender of leases).
(p) (Authorisations) He may apply for, take up, transfer or surrender any
Authorisation or any variation of any Authorisation.
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(q) (Take insolvency proceedings) He may make debtors bankrupt, wind up
companies and do any thing in relation to any actual or contemplated
Liquidation (including, without limitation, attend and vote at meetings of
creditors and appoint proxies).
(r) (Take proceedings) He may commence, defend, conduct, settle, discontinue
or compromise proceedings in the name of the Mortgagor or otherwise.
(s) (Execute documents) He may enter into and execute documents or agreements
on behalf of himself or the Mortgagor. This includes, without limitation,
using the Mortgagor's seal on signing, accepting and endorsing cheques,
promissory notes and bills of exchange.
(t) (Operate bank accounts) He may operate any bank account comprising part of
the Mortgaged Property and open and operate any further bank account.
(u) (Surrender Mortgaged Property) He may surrender, release or transfer any
of the Mortgaged Property.
(v) (Exchange Mortgaged Property) He may exchange with any person any of the
Mortgaged Property for other property.
(w) (Promote companies) He may promote the formation of companies with a view
to purchasing any of the Mortgaged Property or assuming the obligations of
the Mortgagor or otherwise.
(x) (Delegate) He may delegate to any person approved by the Mortgagee any of
his Powers (including delegation).
(y) (Have access) He may have access to and make use of the premises, plant,
equipment, and records and accounting and other services of the Mortgagor
and the services of its staff.
(z) (Vote) He may exercise any voting or other rights or powers in respect of
any of the Mortgaged Property and do anything in relation to Marketable
Securities.
(aa) (Other outgoings) He may pay any outgoing or indebtedness of the Mortgagor
or any other person.
(ab) (Security interests) He may redeem any Security Interest or acquire it and
any debt secured by it.
(ac) (Make calls) He may make calls on the members of the Mortgagor in respect
of any Unpaid Capital.
(ad) (Insure) He may take out insurance.
(ae) (Insurance claims) He may make, enforce, compromise and settle all claims
in respect of insurance.
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(af) (Incidental power) He may do anything incidental to the exercise of any
other Power.
All of the above paragraphs are to be construed independently. None limits the
generality of any other.
6.4 Receiver appointed after commencement of winding up
The power to appoint a Receiver may be exercised notwithstanding that:
(a) an order may have been made or a resolution may have been passed to wind up
the Mortgagor; and
(b) a receiver appointed in those circumstances may not, or may not in some
respects specified by the Receiver, act as the agent of the Mortgagor.
6.5 Powers exercisable by the Mortgagee
Whether or not a Receiver has been appointed, to the extent permitted by law the
Mortgagee may exercise any Power of a Receiver at any time after an Event of
Default (whether or not it is continuing) in addition to any Power of the
Mortgagee and without giving notice. It may exercise those Powers and its
Powers without taking possession or being liable as mortgagee in possession.
6.6 Withdrawal
The Mortgagee may at any time give up possession of the Mortgaged Property and
may at any time withdraw any receivership.
7. POWER OF ATTORNEY
(a) For valuable consideration and by way of security the Mortgagor irrevocably
appoints each director and officer of the Mortgagee severally its attorney
to do anything which:
(i) the Mortgagor is obliged to do under or in relation to any Transaction
Document; or
(ii) the Mortgagee or any Receiver is authorised or empowered to do under
any Transaction Document or any law but only at the times that that
Mortgagee or a Receiver (if a Receiver had been appointed) would have
been able to do it.
(b) Without limitation, the Attorney may at any time:
(i) do anything which in the opinion of the Mortgagee or Attorney is
necessary or considered expedient to secure, preserve, perfect, or
give effect to the security contained in this Deed (including, without
limitation, anything under Clauses 8 or 9) and for this purpose
without limitation he may execute any legal mortgage, transfer,
assignment and other assurance
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of any of the Mortgaged Property in favour of the Mortgagee, any
purchaser or any nominee; and
(ii) delegate his powers (including delegation).
(c) No Attorney appointed under this Deed may act inconsistently with this Deed
or any other Transaction Document.
8. COMPLETION OF BLANK SECURITIES
The Mortgagee, any director or officer of the Mortgagee, any Receiver or any
Attorney may complete any document which at any time is executed by or on behalf
of the Mortgagor and deposited with the Mortgagee. It may complete it in favour
of the Mortgagee, any nominee or any purchaser.
9. PERFORMANCE OF ▇▇▇▇▇▇▇▇▇'S OBLIGATIONS
If at any time the Mortgagor fails duly to perform any obligation in any
Transaction Document the Mortgagee or any person it authorises may do anything
which in its opinion is necessary or expedient to make good or to attempt to
make good that failure to its satisfaction.
10. INSPECTION
The Mortgagee or any person it authorises may at any time inspect and copy the
records of the Mortgagor related to the Mortgaged Property and inspect the
premises of the Mortgagor and its Subsidiaries and inspect the Mortgaged
Property. The Mortgagor will do everything in its power to assist that
inspection and copying and ensure that its employees and officers and its
Subsidiaries and their employees and officers do the same.
11. STATUTORY POWERS
11.1 Powers in augmentation
The powers conferred on a mortgagee by law:
(a) are in addition to the Powers conferred by this Deed or any Collateral
Security;
(b) (to the extent permitted by law) may be exercised by the Mortgagee
immediately an Event of Default occurs and at any time subsequently; and
(c) are excluded or varied only so far as they are inconsistent with the
express terms of this Deed or any Collateral Security.
11.2 Leasing
The Mortgagor is not entitled to surrender any lease, accept any surrender of
lease or to exercise any power of leasing conferred on the Mortgagor by law
except as expressly permitted or contemplated in any Transaction Document.
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11.3 Notice not required
To the extent permitted by law:
(a) the Mortgagor dispenses with any notice or lapse of time required by any
law before enforcing this Deed or any Collateral Security or exercising any
Power;
(b) no Mortgagee is required to give notice to any person before enforcement or
exercise; and
(c) any law requiring the giving of notice or the compliance with a procedure
or the lapse of time before enforcement or exercise is excluded.
12. APPLICATION OF MONEYS RECEIVED
12.1 Order
Subject to any law which applies notwithstanding an agreement to the contrary,
all moneys received by a Receiver, an Attorney or the Mortgagee under or by
virtue of this Deed shall be applied in the following order.
(a) First: all costs, charges and expenses of the Mortgagee or any Receiver or
Attorney which are incurred in or are incidental to the exercise or
performance or attempted exercise or performance of a Power or otherwise in
relation to this Deed or any Collateral Security.
(b) Second: any other outgoings which the Receiver, Attorney or the Mortgagee
thinks fit to pay.
(c) Third: the Receiver's remuneration.
(d) Fourth: to each holder of a Security Interest of which the Mortgagee is
aware and which has priority over this Deed in relation to the relevant
Mortgaged Property, to the extent, and in order, of priority.
(e) Fifth: to the Mortgagee for the account of the Mortgagee towards
satisfaction of the Secured Money.
(f) Sixth: to each holder of a Security Interest of which the Mortgagee is
aware and which ranks after this Deed in relation to the relevant Mortgaged
Property, to the extent, and in order, of priority.
(g) Seventh: the surplus (if any) belongs to the Mortgagor.
The surplus will not carry interest. If it pays the surplus to the credit or an
account in the name of the Mortgagor with any bank carrying on business in
Australia, the Receiver, Mortgagee or Attorney (as the case may be) will be
under no further liability in respect of it.
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12.2 Moneys actually received
In applying any moneys towards satisfaction of the Secured Money the Mortgagor
will be credited only with the money available for that purpose which is
actually received by the relevant Mortgagee. The credit will date from the time
of receipt.
12.3 Amounts contingently due
If any of the Secured Money is contingently owing to the Mortgagee at the time
of a distribution of an amount under Clause 12.1, the Mortgagee may place the
amount contingently owing on short term interest bearing deposit until the
relevant Secured Money become actually due or cease to be contingently owing,
and the Mortgagee shall then:
(a) pay to the Mortgagee the amount which becomes actually due to it; and
(b) apply the balance of the amount retained (together with interest earned on
the deposit) in accordance with Clause 12.1.
12.4 Notice of subsequent Security Interests
(a) If the Mortgagee receives actual or constructive notice of a subsequent
Security Interest affecting any of the Mortgaged Property it may open a
separate account in the name of the Mortgagor in the books of the
Mortgagee.
(b) If the Mortgagee does not open a new account it will be treated as if it
had done so at the time it received actual or constructive notice of the
Security Interest.
(c) From the time the new account is opened or is taken to be opened:
(i) all advances and accommodation made available by the Mortgagee to the
Mortgagor;
(ii) all payments and repayments made by the Mortgagor to that Mortgagee;
and
(iii) moneys to be applied towards the Secured Money under Clause 12.1(e).
will be or will be taken to be debited or credited as appropriate, to the
new account. Payments, repayments and other moneys will only be applied in
reduction of other Secured Money to the extent that, there is no debit
balance in that account.
13. OTHER SECURITY INTERESTS OVER MORTGAGED PROPERTY
(a) The Mortgagee and any Receiver or Attorney may rely on the certificate of a
holder of another Security Interest affecting or purporting to affect the
Mortgaged Property as to the amount and property secured by the Security
Interest.
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(b) The Mortgagee or any Receiver may at any time pay or agree to pay the
amount certified by the holder of a Security Interest or purported Security
Interest to be necessary to discharge it or some indebtedness secured by
it, or to acquire it. From the date of payment that amount will be part of
the Secured Money and the Mortgagor shall indemnify the Mortgagee and the
Receiver on demand against that amount. This applies whether or not that
Security Interest or purported Security Interest was valid or prior, equal
or subsequent ranking, or the property or moneys stated in the certificate
were secured by it.
14. PROTECTION OF MORTGAGEES, RECEIVER AND ATTORNEY
Subject to any law which applies notwithstanding an agreement to the contrary,
no Mortgagee nor any Receiver or Attorney will be liable in respect of:
(a) any conduct, delay, negligence or breach of duty in the exercise or non-
exercise of a Power; nor
(b) for any loss (including consequential loss) which results,
except where it arises from fraud or willful misconduct on the part of the
Mortgagee, Receiver or Attorney.
15. PROTECTION OF THIRD PARTIES
15.1 No enquiry
No party to any Dealing (as defined below) and no person asked to register a
Dealing:
(a) is bound to enquire:
(i) whether an Event of Default has occurred or whether this Deed has
become unenforceable;
(ii) whether a person who is, or purports or is purported to be, a
Receiver or Attorney is duly appointed;
(iii) the amount of Secured Money and whether Secured Money are due and
payable; or
(iv) in any other way as to the propriety or regularity of the Dealing; or
(b) is affected by express notice that the Dealing is unnecessary or improper.
For the protection of any party to a Dealing or a person registering a Dealing,
the Dealing will be taken to be authorised by this Deed and will be valid
accordingly, even if there is any irregularity or impropriety in the Dealing,
In this Clause a "Dealing" is:
(a) any payment or any delivery or handing over of an asset to; or
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(b) any acquisition, incurring of Financial indebtedness, receipt, sale, lease,
disposal or other dealing, by,
the Mortgagee or any Receiver or Attorney, or any person who purports or is
purported to be a Receiver or Attorney.
15.2 Receipt
The receipt of the Mortgagee or any Receiver or Attorney (or person who
purports, or is purported, to be a Receiver or Attorney) for any moneys or
assets payable to, or receivable or received by, it exonerates the person paying
those moneys or handing over that asset from being concerned as to their
application, or from being liable or accountable for their loss or
misapplication.
16. EXPENSES, INDEMNITY
16.1 Expenses
On demand the Mortgagor shall reimburse
the Mortgagee, each Receiver and each Attorney for its expenses in relation to:
(i) any actual or contemplated enforcement of the Transaction Documents or
the actual or contemplated exercise or preservation of any Powers
under the Transaction Documents or in relation to the Mortgaged
Property under the Transaction Documents; and
(ii) any enquiry by a governmental agency concerning the Mortgagor or a
transaction or activity for which, or in connection with which,
financial accommodation or funds raised under a Transaction Document
are used or provided,
including, without limitation, expenses incurred in any review or environmental
audit, in reimbursing or indemnifying any Receiver or Attorney or in retaining
consultants to evaluate matters of material concern to that Mortgagee, and
administrative costs including time of its executives (whose time and costs are
to be charged at reasonable rates), and including in each case legal costs and
expenses (including in-house lawyers charged at their usual rates) on a full
indemnity basis. This does not limit the generality of Clause 16.2.
16.2 Indemnity
On demand the Mortgagor shall indemnify the Mortgagee, and each Receiver and
Attorney against any loss, cost, charge, liability or expense that Mortgage (or
any officer or employee of that Mortgagee) or any Receiver or Attorney may
sustain or incur as a direct or indirect consequence of:
(a) an Event of Default or breach of any Transaction Document;
(b) any exercise or attempted exercise of any Power or any failure to exercise
any Power.
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17. INTEREST ON OVERDUE AMOUNTS
17.1 Accrual and payment
(a) (Accrual) Interest accrues on each unpaid amount which is due and payable
by the Mortgagor under or in respect of any Transaction Document (including
interest payable under this Clause):
(i) on a daily basis up to the date of actual payment from (and
including) the due date or, in the case of an amount payable by way
of reimbursement or indemnity, the date of disbursement or loss, if
earlier;
(ii) both before and after judgment (as a separate and independent
obligation); and
(iii) at the rate provided in Clause 17.2,
except where the relevant Transaction Document provides otherwise.
(b) (Payment) The Mortgagor shall pay interest accrued under this Clause on
demand by the Mortgagee. That interest is payable in the currency of the
unpaid amount on which it accrues.
17.2 Rate
The rate applicable under this Clause is the sum of 2% per annum plus the
highest rate (if any) applicable to the amount immediately before the due date.
18. CERTIFICATE AS TO AMOUNT OF SECURED INTEREST
A certificate signed by the Mortgagee will be conclusive evidence against the
Mortgagor, in the absence of manifest error:
(a) as to the amount of Secured Money stated in the certificate;
(b) that a document specified in that certificate is a Transaction Document;
and
(c) that the Mortgagee is of the opinion stated in the certificate.
19. SURVIVAL OF REPRESENTATIONS AND INDEMNITIES
(a) All representations and warranties in a Transaction Document survive the
execution and delivery of the Transaction Documents and the provision of
advances and accommodation.
(b) Each indemnity in a Transaction Document:
(i) is a continuing obligation;
(ii) is a separate and independent obligation; and
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(iii) survives termination or discharge of the relevant Transaction
Document.
20. CONTINUING SECURITY
Each of this Deed and each Collateral Security is a continuing security despite
any settlement of account, intervening payment or anything else until a final
discharge of this Deed and each Collateral Security has been given to the
Mortgagor.
21. OTHER SECURITIES
No Power and nothing in this Deed or any Collateral Security merges in, or in
any other way prejudicially affects or is prejudicially affected by:
(a) any other Security Interest; or
(b) any judgment, right or remedy against any person,
which the Mortgagee or any person claiming through the Mortgagee may have at any
time.
22. WAIVERS, REMEDIES CUMULATIVE
(a) No failure to exercise and no delay in exercising any Power operates as a
waiver. Nor does any single or partial exercise of any Power preclude any
other or further exercise of that Power or any other Power.
(b) The Powers in this Deed and each Collateral Security are in addition to,
and do not exclude or limit, any right, power or remedy provided by law.
23. CONSENTS AND OPINION
Except where expressly stated the Mortgagee may give or withhold, or give
conditionally, approvals and consents, may be satisfied or unsatisfied, may form
opinions, and may exercise its Powers, at its absolute discretion.
24. SEVERABILITY OF PROVISIONS
(a) Any provision of this Deed or any Collateral Security which is prohibited
or unenforceable in any jurisdiction is ineffective as to that jurisdiction
to the extent of the prohibition or unenforceability. That does not
invalidate the remaining provisions of this Deed or any Collateral Security
nor affect the validity or enforceabillity of that provision in any other
jurisdiction.
(b) Without limiting the generality of paragraph (a):
(i) the definition of Secured Money does not include any liability so
long as and to the extent that the inclusion of that liability would
avoid, invalidate or render ineffective Clause 2 or 3 or the security
constituted by this Deed; and
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(ii) the definition of the Mortgaged Property does not include any asset so
long as and to the extent that the inclusion of that asset would
invalidate, avoid or render ineffective Clause 2 or 3 or the security
constituted by this Deed.
The Mortgagor shall use its best endeavours to satisfy any condition or
obtain any Authorisation which may be necessary to include that liability
or asset validly under this Deed.
25. MORATORIUM LEGISLATION
To the full extent permitted by law all legislation which at any time directly
or indirectly:
(a) lessens, varies or affects in favour of the Mortgagor any obligation under
this Deed or any Collateral Security; or
(b) delays, prevents or prejudicially affects the exercise by the Mortgagee,
any Receiver or Attorney, of any Power,
is excluded from this Deed and any Collateral Security.
26. ASSIGNMENTS
(a) Subject to the other Transaction Documents, a Mortgagee may assign its
rights under this Deed and each Collateral Security. If this Deed is
assigned, the Secured Money will include all actual and contingent
liability of the Mortgagor to the assignee, whether or not it was incurred
before the assignment or in contemplation of it.
(b) The Mortgagor may not assign or transfer any of its rights or obligations
under this Deed or any Collateral Security without the prior written
consent of the Mortgagee.
27. NOTICES
All notices, requests, demands, consents, approvals, agreements or other
communications to or by a party to this Deed:
(a) must be in writing;
(b) must be signed by an officer or director of the sender; and
(c) will be taken to be duly given or made (in the case of delivery in person
or by post or facsimile transmission) when delivered, received or left at
the address of the recipient shown in this Deed or to any other address it
may have notified the sender, but if delivery or receipt is on a day on
which business is not generally carried on in the place to which the
communication is sent or is later than 4 pm (local time), it will be taken
to have been duly given or made at the commencement of business on the next
day on which business is generally carried on in that place.
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28. AUTHORISED OFFICERS
The Mortgagor irrevocably authorises the Mortgagee to rely on a certificate by a
person purporting to be its director or secretary as to the identity and
signatures of its authorised officers. The Mortgagor warrants that those
persons have been authorised to give notices and communications under or in
connection with the Transaction Documents.
29. GOVERNING LAW AND JURISDICTION
This Deed is governed by the laws of New South Wales. The Mortgagor submits to
the non-exclusive jurisdiction of courts exercising jurisdiction there.
30. THIRD PARTY PROVISIONS
30.1 Security not to be affected
None of this Deed, any Collateral Security or any Power nor the obligations of
the Mortgagor under this Deed will be affected by anything which but for this
provision might operate to release, prejudicially affect or discharge them or in
any way relieve the Mortgagor from any obligation including:
(a) the grant to any person of any time, waiver or other indulgence, or the
discharge or release of any person;
(b) any transaction or arrangement that may take place between the Mortgagee
and any person;
(c) the Liquidation of any person;
(d) the Mortgagee becoming a party to or bound by any compromise, moratorium,
assignment of property, scheme of arrangement, composition of debts or
scheme of reconstruction by or relating to any person;
(e) the Mortgagee exercising or delaying or refraining from exercising any
other security or any right, power or remedy conferred on it by law or by
any Transaction Document or by any other document or agreement with any
person;
(f) the amendment, variation, novation, replacement, rescission, invalidity,
extinguishment, repudiation, avoidance, unenforceability, frustration,
failure, expiry, termination, loss, release, discharge, abandonment,
assignment or transfer, in whole or in part and with or without
consideration, of any Transaction Document, or of any other Security
Interest or Guarantee or other document or agreement held by the Mortgagee
at any time or of any right, obligation, power or remedy;
(g) the taking or perfection of or failure to take or perfect a Security
Interest or Guarantee or other document or agreement;
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(h) the failure by any person or the Mortgagee to notify the Mortgagor of any
default by any person under any Transaction Document or any other agreement
with the Mortgagee;
(i) the Mortgagee obtaining a judgment against any person for the payment of
any Secured Money;
(j) any legal limitation, disability, incapacity or other circumstance relating
to any person;
(k) any change in circumstance (including any change in the members or
constitution of any person);
(l) any Guarantee or Security Interest or other document or agreement not being
valid or executed by, or binding on, any person; or
(m) any increase in the Secured Money for any reason (including as a result of
anything referred to above),
whether with or without the consent of the Mortgagor References to "any person"
include the Borrower or any other person. None of the above paragraphs limits
any of the others.
30.2 Principal and independent obligation
This Deed and each Collateral Security is a principal and independent
obligation. Except for stamp duty purposes, it is not ancillary or collateral
to any other Security Interest, right or obligation.
30.3 No marshalling
The Mortgagee is not obliged to marshal or appropriate in favour of the
Mortgagor, or to exercise, apply or recover:
(a) any Security Interest or Guarantee, indemnity or other similar surety
(including, without limitation, any Transaction Document) held by the
Mortgagee at any time; or
(b) any of the funds or assets the Mortgagee may be entitled to receive or have
claim on.
30.4 No competition
Until the Secured Money have been irrevocably paid and discharged in full, the
Mortgagor is not entitled to and shall not:
(a) be subrogated to the Mortgagee or claim the benefit of any Security
Interest or Guarantee, indemnity or other similar surety held by the
Mortgagee at any time;
(b) either directly or indirectly prove in, claim or receive the benefit of,
any distribution, dividend or payment arising out of or relating to the
Liquidation of
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the Borrower or any other person who gives a Guarantee, indemnity or other
similar surety or Security Interest in respect of any Secured Money; or
(c) have or claim any right of contribution or indemnity from any other person
who gives a Guarantee, indemnity or other similar surety or Security
Interest in respect of any Secured Money.
The receipt of any distribution, dividend or other payment by the Mortgagee out
of or relating to any Liquidation will not prejudice the right of the Mortgagee
to recover the Secured Money by enforcement of this Deed and each Collateral
Security.
30.5 Suspense account
In the event of the Liquidation of the Borrower or any other person, the
Mortgagor authorises the Mortgagee:
(a) to prove for all moneys received by any Receiver, Attorney or Mortgagee
under or by virtue of this Deed or any Collateral Security; and
(b) (i) to retain and carry to a suspense account; and
(ii) to appropriate at the discretion of that Mortgagee;
any dividend received in the Liquidation of the Borrower or any other
person and any other money received in respect of the Secured Money,
until that Mortgagee has been paid the Secured Money in full.
30.6 Rescission of payment
Whenever for any reason (including without limitation under any law relating to
Liquidation, fiduciary obligations or the protection of creditors):
(a) all or part of any transaction of any nature (including without limitation
any payment or transfer) made during the term of this Deed which affects or
relates in any way to the Secured Money is void, set aside or voidable;
(b) any claim that anything contemplated by paragraph (a) is upheld, conceded
or compromised; or
(c) the Mortgagee is required to return or repay any money or asset received by
it under any such transaction or the equivalent in value of that money or
asset,
the Mortgagee will immediately become entitled against the Mortgagor to all
rights in respect of the Secured Money and the Mortgaged Property which it would
have had if all or the relevant part of the transaction or receipt had not taken
place. The Mortgagor shall indemnify the Mortgagee on demand against any
resulting loss, cost or expense. This Clause continues to apply after this Deed
is discharged.
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30.7 Indemnity
If any Secured Money (including moneys which would have been Secured Money if
they were recoverable) are not recoverable from the Borrower for any reason,
including without limitation, any legal limitation, disability or incapacity
affecting the Borrower or an obligation in any Transaction Document being or
becoming unenforceable, void or illegal and whether or not:
(a) any transaction relating to the Secured Money was void or illegal or has
been subsequently avoided; or
(b) any matter or fact relating to that transaction was or ought to have been
within the knowledge of the Mortgagee,
the Mortgagor shall indemnify the Mortgagee on demand in respect of those moneys
and shall pay such moneys to the Mortgagee on demand.
30.8 Variations
Without limiting the above provisions, this Deed and any Collateral Security
covers the Secured Money as varied from time to time including, without
limitation, as a result of:
(a) any amendment to any Transaction Document or any new Transaction Document,
(b) the provision of further accommodation to the Borrower,
and whether or not with the consent of or notice to the Mortgagor.
31. COUNTERPARTS
This Deed may be executed in any number of counterparts. All counterparts
together will be taken to constitute one instrument.
32. ACKNOWLEDGEMENT BY ▇▇▇▇▇▇▇▇▇
The Mortgagor confirms that:
(a) it has not entered into any Transaction Document in reliance on, or as a
result of, any conduct of any kind of or on behalf of the Mortgagee or any
related body corporate of the Mortgagee (including, without limitation, any
advice, warranty, representation or undertaking); and
(b) no Mortgagee nor any related body corporate of the Mortgagee is obliged to
do anything (including, without limitation, disclose anything or give
advice),
except as expressly set out in the Transaction Documents.
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32.2 Representations and warranties
The Mortgagor makes the following representations and warranties.
(a) (Status) It is a corporation validly existing under the laws of the place
of its incorporation.
(b) (Power) It has the power to enter into and perform its obligations under
the Transaction Documents to which it is expressed to be a party, to carry
out the transactions contemplated by those documents and to carry on its
business as now conducted or contemplated.
(c) (Corporate authorisations) It has taken all necessary corporate action to
authorise the entry into and performance of the Transaction Documents to
which it is expressed to be a party, and to carry out the transactions
contemplated by those documents.
(d) (Documents binding) Each Transaction Document to which it is expressed to
be a party creates valid and binding obligations enforceable in accordance
with its terms, subject to any necessary stamping and registration subject
to any applicable bankruptcy, insolvency or other laws affecting creditors
rights generally and to general principles of equity.
(e) (Transactions permitted) The execution and performance by it of the
Transaction Documents to which it is expressed to be a party and each
transaction contemplated under those documents did not and will not violate
in any respect a provision of:
(i) a law or treaty or a judgment, ruling, order or decree of a
Governmental Agency binding on it;
(ii) its constitution or other constituent documents; or
(iii) any other document or agreement to which it is a party which is
binding on it or its assets,
and, except as provided by the Transaction Documents, did not and will not:
(iv) create or impose a Security Interest on any of its assets; or
(v) allow a person to accelerate or cancel an obligation with respect to
Financial Indebtedness, or constitute an event of default,
cancellation event, prepayment event or similar event (whatever
called) under an agreement relating to Financial Indebtedness,
whether immediately or after notice or lapse of time or both.
(f) (Accounts)
(i) Its most recent consolidated and unconsolidated audited Accounts give
a true and fair view of the matters with which they deal.
26
(ii) There has been no subsequent change in its state of affairs which is
reasonably likely to have a Material Adverse Effect.
(iii) Those Accounts comply with current accounting practice except to the
extent disclosed in them and with all applicable laws.
(iv) All material Financial Indebtedness and other material contingent
liabilities are disclosed in those Accounts.
(g) (No litigation) No litigation, arbitration, Tax claim, dispute or
administrative or other proceedings is currently or pending or, to its
knowledge, threatened, which may have a Material Adverse Effect.
(h) (No default) Nothing has occurred which constitutes an event of default,
cancellation event, prepayment event or similar event (whatever called)
under a document or agreement to which it is a party binding on it or its
assets which relates to Financial Indebtedness or is material, whether
immediately or after notice or lapse of time or both.
(i) (Authorisations) Each Authorisation which is required in relation to:
(i) the execution, delivery and performance by it of the Transaction
Documents to which it is expressed to be a party and the transactions
contemplated by those documents;
(ii) the validity and enforceability of those documents; and
(iii) its business as now conducted or contemplated and which is material,
has been obtained or effected. Each is in full force and effect. It has
complied with each of them. It has paid all applicable fees for each of
them.
(j) (No misrepresentation) All material information provided by it to the
Mortgagee is true in all material respects at the date of this Deed or, if
later, when provided. Neither that information nor its conduct and the
conduct of anyone on its behalf in relation to the transactions
contemplated by the Transaction Documents, was or is misleading, by
omission or otherwise.
(k) (Agreements disclosed) Each document or agreement which is material to the
Transaction Documents or which has the effect of varying a Transaction
Document has been disclosed to the Mortgagee in writing.
(l) (Copies of documents) All copies of documents (including its latest
audited Accounts and all Authorisations) given by it or on its behalf to
the Mortgagee are true and complete copies in all material respects.
Except as disclosed to the Mortgagee in writing prior to the date of this
deed, those documents are in full force and effect.
(m) (Title) Except as disclosed to the Mortgagee in writing prior to the date
of this deed, it is the sole beneficial owner of all material assets
included in its latest audited Accounts free of any other third party right
or interest whatever.
27
(n) (Law) It has complied with all laws binding on it where breach may have a
Material Adverse Effect.
32.3 Reliance on representations and warranties
The Mortgagor acknowledges that the Mortgagee has entered the Transaction
Documents in reliance on the representations and warranties in this clause.
33. UNDERTAKINGS
33.1 Negative undertakings
The Mortgagor undertakes to the Mortgagee as follows, except to the extent that
the Mortgagee consents:
(a) (Corporate existence) It will do everything necessary to maintain its
corporate existence in good standing. It will not transfer its
jurisdiction of incorporation or enter any merger or consolidation.
(b) (Financial assistance) It will not:
(i) advance money or make available financial accommodation to or for the
benefit of; or
(ii) give a Security Interest in connection with an obligation or liability
of,
a person other than the Mortgagee, but it may deposit funds with a bank in
the ordinary course of its business or provide credit to its customers in
the ordinary course of ordinary business.
(c) (Mortgaged Property) It will not create or suffer to exist any Security
Interest over all or any part of the Mortgaged Property other than this
Deed.
(d) (no changes without consent) It will ensure that no variation is made to
any provision of any Transaction Document or any other document or
agreement entered into in connection with the Mortgaged Property, without
the Mortgagor's prior consent.
(e) (agreements disclosed) It will ensure that a copy of any document or
agreement which is created with the effect of varying a Transaction
Document or any other document or agreement entered into in connection with
the Mortgaged Property, is provided to the Mortgagor promptly after it has
been created.
33.2 Marketable Securities
The Mortgagor covenants with Mortgagee to maintain and protect all Marketable
Securities included in the Mortgaged Property. Without limitation, it covenants
with the Mortgagee as follows (subject to the other provisions of this Deed).
28
(a) (Notify rights offered or accruing) It will:
(i) notify the Mortgagee immediately if it becomes entitled to, or is
offered, New Rights; and
(ii) ensure that all documents relating to New rights or arising out of
their subscription, taking up or exercise are delivered to the
Mortgagee.
(b) (Subscribe to rights) If the Mortgagee directs, it will promptly subscribe
to, take up or exercise New Rights.
(c) (Remedy defects) It will remedy each defect in its holding of those
Marketable Securities.
(d) (Take proceedings) It will take or defend all legal proceedings which the
Mortgagee requires to protect or recover those Marketable Securities.
(e) (Execute documents) It will execute each document to which it is expressed
to be a party in relation to anything required under this clause.
(f) (Pay calls) It will duly pay all calls in respect of those Marketable
Securities.
(g) (Deliver documents) Immediately on receipt by it or for its account, it
will deliver to the Mortgagee each certificate, acceptance, contract note
or transfer for those Marketable Securities.
(h) (Return of documents) If the Mortgagee makes available a document relating
to those Marketable Securities or New Rights for registration, stamping,
exercise, acceptance or another purpose:
(i) it will ensure that the document or each resulting or replacement
document (as the case may be) is delivered directly to the Mortgagee
when available or returned; and
(ii) to the extent required by the Mortgagee, it will ensure that all
persons dealing with it have notice of this Deed.
The Mortgagee will make available any document which it holds on reasonable
request by the Mortgagor for the purpose of recording, perfecting or
preserving the title of the Mortgagor to Marketable Securities, or
exercising rights attaching to Marketable Securities in a manner consistent
with the Mortgagee's security, if arrangements satisfactory to the
Mortgagee are in place to protect the Mortgagee's security.
(i) (Nothing prejudicial) It will not do or omit to do anything which might
render those Marketable Securities liable to forfeiture, cancellation,
avoidance or loss or might otherwise prejudicially affect the Mortgagee's
interest in them or their value.
(j) (Meetings of securityholders) It will immediately provide to the Mortgagee
certified copies of all reports and other documents received by it in its
capacity
29
as a holder of those Marketable Securities or relating in any way to those
Marketable Securities including any report or notice of any meeting which
the holder of Marketable Securities is entitled to attend or vote at or
both.
(k) (Vote)
(i) Subject to sub-paragraph (ii), it will vote those Marketable
Securities in a prudent manner.
(ii) It will not vote those Marketable Securities while an Event of Default
or Potential Event of Default subsists or after this Deed has been
enforced, except with the consent of the Mortgagee.
(l) (Dividends etc to be applied in payment)
(i) It will ensure that all amounts received by it or for its account as
holder of or in relation to those Marketable Securities, whether by
dividend, distribution or otherwise, are applied in payment of the
Secured Money.
(ii) If it receives an asset (other than money, new shares or entitlements
to shares) as holder of or in relation to those Marketable Securities,
it will immediately sell the asset at its market value and apply the
net proceeds of sale in the same way.
(m) (Notices) It will promptly give the Mortgagee copies of all documents and
notices received by it from any beneficiary or manager of the Trust or which it
gives to a beneficiary or manager of the Trust.
33.3 Term of undertakings
Each undertaking in this clause continues from the date of this Deed until the
Secured Money is fully and finally paid.
34. STAMP DUTY
(a) The Mortgagor shall pay (and reimburse the Mortgagee) all stamp,
transactions, registration and similar Taxes (including fines and
penalties) in relation to the execution of any Transaction Document to
which the Mortgagor is a party or any payment or receipt or any other
transaction contemplated by any Transaction Document to which the Mortgagor
is a party.
(b) Those Taxes include financial institutions duty, debits tax or other Taxes
payable by return and Taxes passed on to the Mortgagee by a bank or
financial institution.
(c) The Mortgagor shall indemnify the Mortgagee against any liability resulting
from delay or omission to pay those Taxes except to the extent the
liability results from failure by the Mortgagee to pay any tax after having
been put in funds to do so by the Mortgagor.
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35. REGISTRATION
▇▇▇▇▇▇▇▇▇ will ensure that this charge is registered in the manner and within
such time limits as may be prescribed by law to ensure the full efficacy of this
charge as security to the Mortgagee to pay Taxes.
EXECUTED as a Deed
SIGNED for and on behalf of the )
NESS SECURITY PRODUCTS PTY )
LIMITED by )
who certifies that they are duly appointed as )
the attorney of NESS SECURITY )
PRODUCTS PTY LIMITED and that they )
have not received notification of the ) __________________________
revocation of the power of attorney under )
the authority of which they have executed )
this Deed in the presence of: )
_____________________________________ Signature of Witness
_____________________________________ Print Name of Witness
SIGNED for and on behalf of the )
FAI INSURANCES LIMITED by )
)
who certifies that they are duly appointed as )
the attorney of FAI INSURANCES )
LIMITED and that they )
have not received notification of the ) __________________________
revocation of the power of attorney under )
the authority of which they have executed )
this Deed in the presence of: )
_____________________________________ Signature of Witness
_____________________________________ Print Name of Witness