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EXHIBIT 10.6
SIZZLER ASIA HOLDINGS, INC.
WESTPAC BANKING CORPORATION
ARBN 007 457 141
FIXED AND FLOATING CHARGE
XXXXXX XXXXXXX
Lawyers
Waterfront Place
0 Xxxxx Xxxxxx
XXXXXXXX XXX 0000
DX 102 BRISBANE
Telephone (00) 0000 0000
Facsimile (00) 0000 0000
GB 1090692
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FIXED AND FLOATING CHARGE
DEED dated August 21, 2000
BETWEEN SIZZLER ASIA HOLDINGS, INC., A COMPANY INCORPORATED IN DELAWARE,
THE UNITED STATES OF AMERICA OF c/- 00 XXXXXXXXXXX XXXXXX,
XXXXXXXXX, XXXXXXXX, XXXXXXXXXX, XXXXXXXXX ("CHARGOR")
AND WESTPAC BANKING CORPORATION ARBN 007 457 141 OF 000 XXXXX XXXXXX,
XXXXXXXX, XXXXXXXXXX, XXXXXXXXX ("FINANCIER")
1. INTERPRETATION
1.1 DEFINITIONS
In this document:
"ATTACHMENT NOTICE" means a notice or direction under which a Public
Authority requires money, which would otherwise be payable to the
Chargor, to be paid or transferred to it or to the Crown. This includes
notices under section 218 or section 255 of the Income Tax Assessment
Xxx 0000 (Cth) or under section 74 of the Sales Tax Assessment Act 1992
(Cth).
"ATTORNEY" means an attorney appointed under a Relevant Agreement.
"AUTHORISED OFFICER" means:
(a) in relation to the Financier, an attorney of the Financier and a
person holding or acting in the office of director, chief
executive or secretary or whose title includes the word
'Manager' or 'Director; and
(b) in relation to the Chargor, a person holding or acting in the
office of president, vice president, chief financial officer,
chief executive or secretary.
"BUSINESS DAY" means a day on which banks (as defined in the Banking Xxx
0000 (Cth)) are open for general banking business in Brisbane, excluding
Saturdays and Sundays and public holidays.
"CHARGE" means the charge over, and security interest in, the Charged
Property created under this document.
"CHARGED PROPERTY" means all the property, assets and rights of the
Chargor, whether acquired before or after this document is executed,
wherever located. This includes all property, assets and rights held by
the Chargor as trustee and wherever located. The Charged Property
includes, without limitation, all the property, assets and rights of the
Chargor described in Schedule A hereto.
"COLLATERAL SECURITY" means a Guarantee, Security Interest or negotiable
instrument held or given, whether before or after this document is
executed, as security for or otherwise in connection with the Secured
Money.
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"DEBTOR" means a person any of whose present or future, actual or
contingent indebtedness or liabilities to the Financier is or are
supported or secured by a present or future Guarantee or Security
Interest given or entered into by the Chargor.
"EVENT OF DEFAULT" has the meaning given to it in the Negative Pledge.
"GUARANTEE" means a guarantee, indemnity, letter of credit, letter of
comfort or any other obligation (whatever it is called and whatever its
nature) by which a person is responsible for another person's obligation
or debt.
"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.
"LIQUOR ACT" means any Statute regulating the sale, disposal and
consumption of liquor;
"LIQUOR LICENCE" means any licence or permit issued now or in the
future, to or acquired by the Chargor pursuant to a Liquor Act;
"MARKETABLE SECURITIES" has the meaning given to it in the Corporations
Law.
"NEGATIVE PLEDGE" means the Unlimited Cross Guarantee and Indemnity and
Negative Pledge with Financial Ratio Covenants dated on or around the
date of this document between the Financier, Xxxxxxx Foods Group Pty Ltd
ACN 009 937 900 and others.
"PERMITTED SECURITY INTEREST" means:
(a) a Security Interest which the Financier has consented to. It
does not include a Security Interest which the Financier has
consented to on one or more conditions if those conditions are
not complied with; and
(b) a lien or charge on the Charged Property arising by operation of
law in the ordinary course of the Chargor's ordinary business.
It does not include a lien or charge which secures overdue
debts.
"POTENTIAL EVENT OF DEFAULT" means any event, thing or circumstance
which with the giving of notice or passage of time or both would become
an Event of Default.
"PUBLIC AUTHORITY" means the Crown, a government, a minister of a
government, a government department, a statutory corporation, or a
semi-government or judicial entity.
"RECEIVER" means a receiver or receiver and manager appointed under this
document. When two or more persons are appointed, the expression
"Receiver" refers to each of those persons severally as well as to two
or more of them jointly.
"RECORDS" means all the information which relates in any way to a
specified person's business or any transaction entered into by the
person, whether the information is recorded electronically, magnetically
or otherwise.
"RELEVANT AGREEMENT" means:
(a) this document; and
(b) a Collateral Security; and
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(c) an agreement between:
(i) the Financier and the Chargor; or
(ii) the Financier and a Debtor; or
(iii) the Financier and any combination of the Chargor and one
or more Debtors;
that relates to the Secured Money or another Relevant Agreement
or contains terms on which the Secured Money remains
outstanding; and
(d) a document that the Chargor and the Financier agree is a
Relevant Agreement.
"SECURED MONEY" means all money that the Chargor or a Debtor is liable
to pay to the Financier at or after the date of this document on any
account and in any way whatever, and whether:
(a) the Chargor or Debtor is liable alone or together with another
person; or
(b) the Chargor or Debtor is liable as principal debtor, surety,
partner, trustee, beneficiary or otherwise; or
(c) the relevant liability:
(i) is actual or contingent, ascertained or unascertained,
fixed or fluctuating;
(ii) is in respect of principal, interest, Guarantee
obligations, purchase obligations, fees or damages; or
(iii) is in dollars, another currency or a combination of
currencies,
or is of any other character.
"SECURITY INTEREST" means a mortgage, pledge, lien, charge, preferential
right, trust arrangement, agreement or other arrangement given, arising
or created as security.
"SUBSIDIARY" has the meaning given to it in the Negative Pledge.
"TAX" includes a tax, levy, duty or charge (and associated penalty or
interest) imposed by a Public Authority. It includes income,
withholding, stamp and transaction taxes and duties but does not include
income tax on the overall net income of the Financier.
"WINDING UP" includes:
(a) dissolution, liquidation, provisional liquidation and
bankruptcy; and
(b) a procedure which is equivalent or analogous in any
jurisdiction.
1.2 OTHER EXPRESSIONS
In this document, unless the contrary intention appears:
(a) the singular includes the plural and vice versa;
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(b) other grammatical forms of defined words or expressions have
corresponding meanings;
(c) if this document binds two or more persons, it binds them
severally and jointly;
(d) a reference to a party to this document includes that party's
successors and permitted assigns;
(e) a reference to a document or agreement includes that document or
agreement as novated, altered or replaced;
(f) when two or more persons are named as Chargor, the term
"Chargor" is a reference to each of them alone and also to any
two or more of them together. The same applies to the term
"Debtor";
(g) a reference to any thing includes the whole or any part of that
thing and a reference to a group of things or persons includes
each thing or person in that group;
(h) "dollars" and "$" refer to Australian currency;
(i) words implying natural persons include partnerships, bodies
corporate, associations and Public Authorities;
(j) a reference to any legislation or statutory instrument or
regulation is construed in accordance with the Acts
Interpretation Xxx 0000 (Cth) or the equivalent State
legislation, as applicable.
2. CHARGE
2.1 CREATING THE CHARGE
(a) Subject to paragraph (b), the Chargor charges and grants a
security interest in the Charged Property in favour of the
Financier as security for the payment of the Secured Money.
(b) If any part of the Charged Property is prohibited under an
agreement entered into by the Chargor in good faith with an
independent third party from being made the subject of the
Charge without the consent of that third party, then the Charge
shall not take effect over that part of the Charged Property
until that consent is obtained.
2.2 FIXED CHARGE
The Charge is a fixed charge over:
(a) real property; and
(b) plant, equipment and machinery other than stock-in-trade and
work-in-progress; and
(c) Marketable Securities; and
(d) negotiable or other instruments; and
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(e) the benefit of any Guarantee or Security Interest held by the
Chargor; and
(f) the benefit of any contract or agreement to which the Chargor is
a party; and
(g) any right to recover money or property (other than book debts)
by legal proceedings; and
(h) capital, including premiums and uncalled and called but unpaid
capital; and
(i) licences connected with the Chargor's business; and
(j) goodwill, patents, trade marks, service marks, copyrights, and
registered designs; and
(k) the Chargor's Records and all software and other means used to
access the Chargor's Records; and
(l) all certificates of title and other documents evidencing title
to the Charged Property; and
(m) insurance policies and proceeds; and
(n) the interest of the Chargor in any partnership or joint venture;
and
(o) accounts and deposits with the Financier where there is some
restriction on the right of the Chargor to withdraw or use the
funds in those accounts or deposits; and
(p) all book debts owed to the Chargor not included in the above
which arise in the ordinary course of trading, but this does not
include proceeds of those debts which are received before the
first to occur of:
(i) the Charge being enforced; and
(ii) the Financier requiring those proceeds to be paid into
an account or deposit of the type mentioned in
sub-paragraph (o) (the Financier may require the
proceeds to be paid into such an account at any time
after an Event of Default or Potential Event of
Default); and
(q) any other personal property that is not acquired for disposal in
the ordinary course of the Chargor's business; and
(r) interests in any of the property, assets or rights described in
this subclause.
2.3 FLOATING CHARGE
The Charge is a floating charge on the rest of the Charged Property.
2.4 THE FLOATING CHARGE BECOMES FIXED
The floating charge becomes fixed:
(a) over any part of the Charged Property not already subject to a
fixed charge under this document:
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(i) if, unless with the prior written consent of the
Financier or as expressly permitted under a Relevant
Agreement, the Chargor:
(A) creates or allows any Security Interest over;
(B) sells, leases, licences or otherwise disposes
of;
(C) creates or allows any interest in; or
(D) parts with possession of,
that asset or agrees or attempts to do so or takes any
step towards doing so;
(ii) on any step being taken with a view to levying or
enforcing any distress, attachment or other execution on
that part of the Charged Property or to enforcing any
Security Interest in respect of that part of the Charged
Property;
(iii) on a Public Authority signing an Attachment Notice which
will affect that part of the Charged Property; or
(b) over all of the Charged Property:
(i) if any order is made or a resolution is passed for the
Winding Up of the Chargor or the Chargor is otherwise
subjected to or enters into Liquidation; or
(ii) on this document being enforced in any way following the
occurrence of an Event of Default or Potential Event of
Default; or
(c) over any part of the Charged Property not already subject to a
fixed charge under this document:
(i) if the Financier notifies the Chargor that the Charge is
fixed over a specified part of the Charged Property; or
(ii) when it becomes fixed by law.
Except where expressly stated, no notice or action by the Financier is
necessary for the floating charge to become fixed.
2.5 THE PARTIES TREAT THE FIXED CHARGE AS FLOATING AGAIN
(a) The Financier may notify the Chargor that the Charge is no
longer fixed on the assets specified in the Financier's notice
("RELEVANT ASSETS"), with effect from the date specified in that
notice.
(b) From the date specified in that notice, the Relevant Assets
(whether acquired before or after that date) are subject to the
floating charge until the Charge crystallises under clause 2.4.
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2.6 CONTINUING SECURITY AND DISCHARGING THE CHARGE
The Charge is a continuing security. It remains in effect until the
Financier gives a final discharge to the Chargor. The Chargor is only
entitled to a final discharge if:
(a) all of the Secured Money has been paid; and
(b) the Financier is satisfied that there are no amounts which will
subsequently fall within the description of the Secured Money.
In satisfying itself under paragraph (b), the Financier may consider any
matters it thinks relevant, including (without limitation) the
possibility that a payment to reduce the Secured Money might be
repayable, void or voidable under a law relating to insolvency or
protecting creditors.
2.7 PRIORITY AMOUNT - MAXIMUM PROSPECTIVE LIABILITY
The maximum prospective liability secured by the Charge is
$100,000,000.00. This amount and this clause:
(a) apply only to fix priority under section 282(3) of the
Corporations Law; and
(b) do not affect any obligation of the Chargor under a Relevant
Agreement including, but not limited to, its obligation to pay
the Secured Money; and
(c) do not in any way fix a limit on the amount which may be secured
by this document.
2.8 FIRST PRIORITY SECURITY INTEREST
The Charge is a first charge. With respect to any Charged Property as to
which the law of any state of the United States of America governs the
granting, perfection or effect of perfection of a security interest, the
Charge created hereunder is a first priority perfected security
interest.
3. PAYMENT OBLIGATIONS
3.1 SECURED MONEY
The Chargor must pay the Secured Money (free from any deduction, set-off
or counter-claim):
(a) at the times and in the way specified in the Relevant
Agreements; and
(b) otherwise, on demand to or as directed by the Financier.
3.2 INTEREST
The Chargor must pay interest on the Secured Money to or as directed by
the Financier, at the rates specified in the Relevant Agreements. If no
rate is specified, the rate is as determined by the Financier. Interest
accrues from day to day, computed from the time:
(a) the Secured Money became owing (whether or not it is immediately
payable); or
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(b) in relation to money payable under clause 3.3, the relevant
amount was incurred.
Interest may be capitalised monthly or at the times agreed between the
parties. It then bears interest itself under this clause. Interest
continues to be payable despite the Winding Up of any person, or any
judgment obtained against any person.
3.3 COSTS AND EXPENSES
The Chargor indemnifies the Financier against, and must pay on demand to
the Financier, all Taxes and all reasonable costs and expenses
(including, but not limited to, legal costs and expenses on a full
indemnity basis) which the Financier or a Receiver or Attorney pays, or
is liable to pay, in connection with:
(a) a Relevant Agreement, or negotiating, preparing, completing,
registering or stamping a Relevant Agreement; or
(b) maintaining, preserving or protecting the Charged Property; or
(c) surveying, valuing, inspecting or reporting on the Charged
Property; or
(d) obtaining or attempting to obtain payment of the Secured Money
from any person; or
(e) protecting, enforcing or exercising a right, power or remedy of
the Financier or a Receiver or Attorney under or in connection
with a Relevant Agreement; or
(f) an Event of Default or Potential Event of Default; or
(g) the Financier providing financial accommodation to or at the
request of the Chargor; or
(h) a receipt or payment of money under, or a transaction
contemplated by, a Relevant Agreement.
3.4 CONTINGENT LIABILITIES
If the Financier has declared the Secured Money to be immediately
payable (under clause 9 or a similar provision in a Relevant Agreement),
the money which the Chargor must immediately pay to the Financier
includes an amount equal to the sum of:
(a) the contingent liability of the Chargor or a Debtor under a
Guarantee; and
(b) the aggregate face value of all negotiable instruments:
(i) drawn, accepted or endorsed by the Financier at the
express or implied request of the Chargor or a Debtor;
and
(ii) which have not yet matured or which have not yet been
discharged to the satisfaction of the Financier; and
(c) any other amount which may become payable by the Chargor to the
Financier in connection with a contingent liability.
3.5 LOSS RESULTING FROM EVENT OF DEFAULT
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The Chargor indemnifies the Financier against all losses (including
foregone profits) the Financier suffers in connection with or as a
result of an Event of Default.
3.6 INDEMNIFIED AMOUNTS IN FOREIGN CURRENCY
Where under this document the Chargor must reimburse or indemnify the
Financier against an amount denominated in a currency other than
Australian dollars, the Chargor must pay the amount in the relevant
currency, except as follows. The Financier may request it be paid in
Australian dollars. In that case, the Chargor will pay the amount of
Australian dollars which the Financier certifies that it used to buy the
relevant amount of the other currency at the rate determined by the
Financier to be its usual selling rate for the other currency.
3.7 CURRENCY INDEMNITY
The Chargor promises to indemnify the Financier on demand against any
shortfall which arises whenever, for any reason (including as a result
of a judgment or order, or Liquidation):
(a) the Financier receives or recovers an amount in one currency
("PAYMENT CURRENCY") in respect of an amount due to it in
another currency ("DUE CURRENCY"); and
(b) the amount actually received or recovered by the Financier at
its usual rate of exchange in accordance with its normal
practice when it converts the Payment Currency into the Due
Currency is less than the relevant amount of the Due Currency.
4. CHARGOR'S OTHER OBLIGATIONS
4.1 POSITIVE OBLIGATIONS
The Chargor must:
(a) carry on its business in a proper and efficient way and obtain,
renew and maintain all material licences, consents and approvals
advisable in connection with the Chargor's business; and
(b) maintain proper and adequate books and records in accordance
with applicable accounting standards; and
(c) pay when due the Taxes assessed, levied or imposed on the
Chargor (other than those being contested in good faith,
provided sufficient reserves have been set aside to meet the
potential liability), the Charged Property or the Financier in
connection with the Charged Property; and
(d) comply with each term of each material lease and material
contract to which it is a party unless the term is the subject
of a bona fide dispute or is legally unenforceable; and
(e) ensure that each of its Subsidiaries complies with clauses
4.1(a), (b), (c) and (d) for its own business and property; and
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(f) ensure that each of its Subsidiaries has granted and registered
or promptly grants and registers a charge to the Financier over
all of its property, assets and rights in form and substance
satisfactory to the Financier;
(g) comply with all laws and with the mandatory requirements of any
Public Authority and promptly carry out work required by a
Public Authority concerning the Charged Property except where
the requirement to do so is being contested in good faith; and
(h) do everything necessary to ensure no Event of Default occurs;
and
(i) prosecute and defend (at the Chargor's expense) all legal
proceedings which are advisable, or which the Financier advises
the Chargor that it considers advisable, to avoid a material
adverse effect on the Charged Property; and
(j) protect the Charged Property, keep it in good repair and good
working condition and, if requested by the Financier, replace
any part of the Charged Property which, in the Financier's
opinion, needs replacement; and
(k) give the Financier the certificates of title and other documents
evidencing title to that part of the Charged Property over which
the Charge is a fixed charge as soon as they are available to
the Chargor or its agents; and
(l) promptly give the Financier the Security Interests (and
documents in connection with the Security Interests) in favour
of the Chargor which secure the performance of any obligation or
the payment of any money owed to the Chargor; and
(m) take whatever action the Financier reasonably requires in
connection with environmentally hazardous substances.
4.2 NEGATIVE OBLIGATIONS
The Chargor must not, without the consent of the Financier:
(a) materially change the scope or nature of its business as it is
carried on at the date of this document; or
(b) do or allow anything to be done in derogation of the Financier's
rights, powers or remedies under any Relevant Agreement; or
(c) deal with or dispose of:
(i) the Charged Property over which the Charge is fixed; or
(ii) the Charged Property over which the Charge is floating,
except in the ordinary course of the ordinary business
of the Chargor;
except as permitted under clause 12.2(b) of the Negative Pledge;
(d) permit a Security Interest (other than a Permitted Security
Interest) to affect the Charged Property; or
(e) apply for or obtain money, goods or services from a Public
Authority, fail to pay an amount to a Public Authority (unless
the Chargor is contesting the
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liability to pay in good faith and has set aside sufficient
reserves to meet the liability) or do anything else which might
lead to a liability or Tax being imposed on the Charged
Property; or
(f) other than in the ordinary course of the Chargor's business
materially alter or remove a building, improvement or fixture
which is part of the Charged Property; or
(g) acquire or dispose of an asset, or incur a liability, except in
the ordinary course of the Chargor's ordinary business and on
"arm's length" terms or as permitted under clause 12.2(b) of the
Negative Pledge; or
(h) dispose of any book debts owed to it, or any of its monetary
claims or revenue; or
(i) deposit money:
(i) on terms that the money is redeemable, repayable or may
be withdrawn only if the Chargor pays some other debt or
performs some other obligation; or
(ii) if a right of set-off (however described) may be
exercised against the deposit,
except that the Chargor may lodge security deposits required to
be lodged under leases entered into at arms' length or with
Public Authorities (other than in respect of moneys which are
delinquent); or
(j) buy or agree to buy anything on terms reserving title to any
person until paid for (except stock purchases in the ordinary
course of business); or
(k) call up uncalled capital or uncalled premiums of the Chargor or
receive it in advance of calls or apply it except to pay the
Secured Money; or
(l) allow an environmentally hazardous substance to be released on
or from the Charged Property in breach of any law or the
requirements of any Public Authority; or
(m) do or allow anything to be done which may (other than in an
immaterial way) prejudice the Financier's security or rights
under a Relevant Agreement.
4.3 UNDERTAKINGS RELATING TO LIQUOR LICENCE
If the Chargor at any time holds a Liquor Licence the Chargor undertakes
to the Financier that:
(a) (i) it will personally carry on the business in respect of
which the Liquor Licence is held upon the premises to
which the Liquor Licence relates ("LICENSED PREMISES")
or cause that business to be carried on by a person
previously nominated by it and who is acceptable to the
relevant licencing authority;
(ii) it will perform and observe the provisions and
requirements of:
(A) the Liquor Act;
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(B) all other statutes affecting or relating to the
licensed premises and the business carried on at
the licensed premises; and
(C) any order or notice given, sent or served upon
the Financier or the Chargor pursuant to or by
virtue of the Liquor Act or any other statute;
(iii) it will apply for all licenses, permits and renewals of
licences and permits necessary or desirable for the
conduct of the business carried on at the licensed
premises and will oppose any application to restrict or
cancel any such licence; and
(iv) it will not:
(A) change the use of the licensed premises;
(B) remove or apply to remove the Liquor Licence or
allow the Liquor Licence to be removed from the
licensed premises to other premises;
(C) surrender or attempt to surrender, suspend or
attempt to suspend, or transfer or attempt to
transfer the Liquor Licence or vary any of the
conditions of the Liquor Licence; or
(D) mortgage, charge, assign, transfer, lease or
part with possession of the licensed premises or
any part of them to any person or attempt to do
so,
without the Financier's prior written consent.
(b) If and when required by the Financier after the occurrence of an
Event of Default, the Chargor shall use its best endeavours to
obtain a transfer of the Liquor Licence to the Financier or its
nominee.
5. CHARGOR'S INSURANCE OBLIGATIONS
5.1 POSITIVE OBLIGATIONS
The Chargor must:
(a) maintain, with underwriters and on terms reasonably acceptable
to the Financier:
(i) insurance over the Charged Property for its full
insurable value (or such other amount as the Financier
specifies) against loss, damage or destruction resulting
from theft, fire, storm and the other risks usually
covered by insurance, and the risks the Financier
specifies; and
(ii) worker's compensation, public risk, business
interruption, loss of rent insurance and the other
insurance which a prudent person would have if involved
in a business similar to the Chargor's; and
(iii) the other insurance which the Financier reasonably
specifies;
(b) ensure that this insurance:
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(i) has the interest of the Financier as chargee or
mortgagee endorsed on the policy; or
(ii) if the Financier directs, is in both the names of the
Chargor and the Financier for their respective rights
and interests; and
(c) deliver to the Financier:
(i) the insurance policies relating to this insurance
("INSURANCE POLICIES"); and
(ii) all alterations and additions to the Insurance Policies,
immediately after they are issued; and
(d) on request, give the Financier certificates of currency for the
Insurance Policies; and
(e) punctually pay the sums (including stamp duty) necessary to
maintain every Insurance Policy and give the Financier promptly
on request the receipt for the premium sum paid; and
(f) notify the Financier immediately after becoming aware of
anything which might give rise to a claim or right to claim
under an Insurance Policy which claim might or will exceed
$1,000,000.00.
5.2 NEGATIVE OBLIGATIONS
The Chargor must not without the consent of the Financier:
(a) do or allow anything to be done which might cause an Insurance
Policy to be prejudiced; or
(b) take steps to bring about a material change to the cover under
an Insurance Policy; or
(c) insure the Charged Property other than as specified in clause
5.1; or
(d) make, enforce, settle or compromise a claim or do anything
inconsistent with the powers of the Financier under clause 5.3.
5.3 INSURANCE CLAIMS
The Chargor may not without the consent of the Financier:
(a) make, enforce, settle and compromise insurance or compensation
claims in connection with the Charged Property; or
(b) xxx for, recover, receive and give discharges for money payable
in connection with the Insurance Policies,
where such claims or money payable exceed $1,000,000.00.
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5.4 INSURANCE PROCEEDS
(a) If the Chargor receives money payable under an Insurance Policy
before a final discharge of this Charge, the Chargor must, if a
Potential Event of Default or Event of Default has occurred or,
in any event, if the amount received is in excess of
$1,000,000.00, pay it to the Financier immediately;
(b) the Financier may apply money received under an Insurance Policy
either:
(i) if a Potential Event of Default or Event of Default has
occurred and is outstanding, in or towards payment of
the Secured Money, whether due or not; or
(ii) in replacing, rebuilding or repairing, under the
supervision of the Financier, or the Financier's builder
or architect, the property destroyed or damaged.
6. CHARGOR'S REPORTING OBLIGATIONS
6.1 NOTICES TO THE FINANCIER
The Chargor must notify the Financier as soon as an Authorised Officer
of the Chargor becomes aware of:
(a) an Event of Default or Potential Event of Default; or
(b) a representation or warranty in any Relevant Agreement becoming
materially false or misleading (giving full details); or
(c) the Charged Property being acquired or resumed by a Public
Authority or a proposal to do so; or
(d) the Chargor acquiring or intending to acquire a Subsidiary; or
(e) a material requirement or notice of a Public Authority in
connection with the Charged Property and must give the Financier
a copy of any related document it has and full details of all
relevant facts known to the Chargor concerning the requirement
or notice; or
(f) any environmentally hazardous substance released from or
affecting the Charged Property in breach of any law or the
requirements of any Public Authority.
7. ACCESS TO AND INVESTIGATION OF RECORDS AND LAND
7.1 GIVING ACCESS TO RECORDS AND LAND
The Chargor must:
(a) ensure that the Records of the Chargor and its Subsidiaries are
available for inspection at reasonable times by the Financier
and persons acting on the Financier's behalf; and
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(b) allow the Financier and persons acting on the Financier's behalf
to inspect and to take copies of or extracts from the Chargor's
and its Subsidiaries' Records during business hours and give
reasonable assistance to them; and
(c) allow, or obtain for the Financier and persons acting on the
Financier's behalf, full access at all times during business
hours to the Charged Property and to any land or building:
(i) occupied by the Chargor or its Subsidiaries; or
(ii) forming or containing part of the Charged Property,
and give reasonable assistance to them.
7.2 INVESTIGATING ACCOUNTANTS
If the Financier at any time is of the opinion that an Event of Default
or Potential Event of Default has occurred or is likely to occur, the
Financier may appoint a firm of independent accountants or other experts
("INVESTIGATING ACCOUNTANTS") to investigate the affairs and financial
position of the Chargor and, if the Financier requires, of the
Subsidiaries of the Chargor. The Chargor:
(a) unconditionally authorises the Investigating Accountants to take
the action which is reasonably necessary for the investigation.
This does not include the power to manage the Chargor's business
(unless an Event of Default has occurred and the Financier is
exercising enforcement rights under this document); and
(b) agrees to give the Investigating Accountants all reasonable
assistance and access to all relevant records and information
for that purpose; and
(c) unconditionally authorises the Investigating Accountants to
disclose to the Financier and its advisers all information and
documentation in connection with the investigation.
The Chargor must pay the reasonable costs and expenses of the
investigations to the Investigating Accountants on demand and reimburse
the Financier for its costs and expenses.
8. BETTER SECURITY AND RIGHTS FOR FINANCIER
8.1 BETTER SECURITY AND RIGHTS
The Chargor must, at the Chargor's cost, do whatever the Financier
reasonably requires to:
(a) more satisfactorily secure to the Financier the payment of the
Secured Money; or
(b) enable the Financier to better exercise its rights over the
Charged Property,
and must use its best efforts to make anyone else who has an interest in
the Charged Property or claims under or in trust for the Chargor do the
same.
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8.2 EXAMPLES
This includes, but is not limited to, executing:
(a) a Security Interest (including a legal mortgage) over the
Charged Property;
(b) ancillary Guarantees or other documents; and
(c) financing statements suitable for filing or recording in any
state of the United States of America,
in a form reasonably satisfactory to the Financier.
9. EFFECT OF EVENT OF DEFAULT
After an Event of Default the Financier may declare the Secured Money
payable. If so, the Secured Money becomes immediately payable, unless
the Financier specifies otherwise.
10. FINANCIER'S POWERS
10.1 GENERALLY
(a) After an Event of Default, the Financier may do the things which
a mortgagee and an absolute owner could do to the Charged
Property and exercise the rights, powers and remedies of a
mortgagee and an absolute owner of the Charged Property. These
include, but are not limited to, the things and powers described
in this clause 10, and the rights, powers and remedies of a
secured party under the Uniform Commercial Code of any
jurisdiction in the United States of America.
(b) The Financier need not make a demand or give notice to anyone
before doing these things or exercising these powers, except if
notice is required as described in clause 10.10.
10.2 TO TAKE POSSESSION OF CHARGED PROPERTY
After an Event of Default the Financier may:
(a) take possession of the Charged Property; and
(b) receive the rents and profits of the Charged Property.
10.3 TO DEAL WITH THE CHARGED PROPERTY AND CHARGOR'S BUSINESS
After an Event of Default the Financier may do any of the following:
(a) (CARRY ON BUSINESS) carry on or participate in the Chargor's
business in the name of the Chargor or the Financier or
otherwise; and
(b) (BANK ACCOUNTS) operate bank accounts in the name of the Chargor
(alone or together) to the exclusion of the Chargor; and
(c) (NEGOTIABLE INSTRUMENTS) deal with negotiable instruments in the
name of the Chargor; and
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(d) (CONTRACTUAL RIGHTS)
(i) perform the Chargor's obligations under; and
(ii) enforce or exercise or not exercise the Chargor's rights
and powers under; and
(iii) agree to vary or rescind,
a contract, instrument, arrangement or right forming part of the
Charged Property; and
(e) (COMPROMISE) settle, compromise or submit to arbitration a
dispute in connection with the Charged Property; and
(f) (PERFORM CHARGOR'S OBLIGATIONS) do everything it may to comply
with the obligations of the Chargor under a Relevant Agreement;
and
(g) (REMEDY BREACH) do everything it may to make good a breach or
default inherent in an Event of Default, to its own
satisfaction; and
(h) (DEPOSIT MONEY IN SUSPENSE OR OTHER ACCOUNTS) invest, deposit or
hold the Charged Property in any way that, and for as long as,
the Financier thinks fit and vary, transpose or reinvest the
Charged Property; and
(i) (MAKE CALLS) make calls on the members of the Chargor for the
uncalled capital or uncalled premiums subject to the Charge; and
(j) (RECOVER, PROTECT CHARGED PROPERTY) do everything the Financier
thinks necessary to recover or protect the Charged Property
including, but not limited to, Winding Up debtors of the
Chargor; and
(k) (LEGAL PROCEEDINGS) commence, prosecute, defend and settle
proceedings which the Financier considers expedient in
connection with this document or the Charged Property in or
before a Public Authority in the name of the Chargor or
otherwise; and
(l) (MARKETABLE SECURITIES) exercise the rights and powers of an
absolute owner in connection with Marketable Securities which
form part of the Charged Property. The Chargor appoints the
Financier and each Authorised Officer of the Financier
separately to be the authorised representative and proxy of the
Chargor to do the things described in this paragraph; and
(m) (EXCHANGE) exchange the Charged Property for any other property
or rights (with or without giving or receiving any other
consideration for the exchange); and
(n) (TRANSFER OBLIGATIONS) effect a novation of or otherwise
transfer to any person obligations of the Chargor which arise
under a Relevant Agreement or otherwise; and
(o) (IMPROVE CHARGED PROPERTY) do anything which the Financier
considers would help improve the value of the Charged Property,
obtain income or returns from it or make it saleable or more
saleable. Without limitation, the
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Financier may improve or alter the Charged Property, acquire
additional property in the name of the Chargor, reorganise or
restructure the Chargor's business or any process or procedure
carried on by the Chargor, and undertake any marketing or
publicity campaign; and
(p) (BUILD, PULL DOWN, REBUILD OR ALTER)
(i) build a new building or improvement; and
(ii) pull down, rebuild or alter a building or improvement,
on land which, or an interest in which, is part of the Charged
Property; and
(q) (EXECUTE DOCUMENTS) enter into agreements and execute documents
itself or on behalf of the Chargor for any purpose in connection
with a Relevant Agreement; and
(r) (BORROW, SECURE) in the name of the Chargor or otherwise:
(i) obtain financial accommodation (including, but not
limited to, from a party associated with the Financier)
for any purpose which the Financier considers expedient
in connection with its powers under a Relevant
Agreement; and
(ii) secure the payment or repayment of indebtedness relating
to that financial accommodation by a Security Interest
over the Charged Property, however it ranks for priority
with the Charge or a Collateral Security; and
(s) (EMPLOY AND APPOINT PERSONS) employ staff and appoint
professionals and consultants for any purpose, and at the
remuneration, that the Financier thinks fit; and
(t) (DELEGATE) delegate to any person for any time that the
Financier thinks fit any of the powers of the Financier under
this document, including this right of delegation; and
(u) (INCIDENTAL POWER) do anything the Financier thinks expedient in
its interests and incidental to any of its powers under this
document, without limiting those powers; and
(v) (SPEND MONEY) spend money in exercising its powers in this
document. That money then forms part of the Secured Money.
10.4 TO DISCHARGE OR ACQUIRE PRIOR SECURITY INTEREST
After an Event of Default the Financier may:
(a) purchase the debt secured by a prior Security Interest; or
(b) pay the amount required to discharge or satisfy that debt
(including, but not limited to, a debt secured by a Permitted
Security Interest); or
(c) take a transfer or assignment of that Security Interest and any
Guarantee, document or right ancillary or collateral to it, at
the Chargor's cost.
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10.5 EXERCISE OF RIGHTS UNDER CLAUSE 10.4
If the Financier exercises its rights under clause 10.4:
(a) the Chargor is indebted to the Financier for the same amount
paid by the Financier. This does not limit any other debt
acquired by the Financier; and
(b) that debt is immediately payable to the Financier and forms part
of the Secured Money and interest accrues on the unpaid amount
of that debt under clause 3.2; and
(c) the Financier need not enquire whether the money claimed to be
owing is actually owing in connection with the prior Security
Interest, or an ancillary or collateral document; and
(d) the person with the benefit of the prior Security Interest need
not enquire whether there is any money owing under a Relevant
Agreement; and
(e) the Chargor directs any person with the benefit of a prior
Security Interest to give the Financier any information it
requires in connection with the prior Security Interest. This
includes, but is not limited to, the state of accounts for that
Security Interest.
10.6 TO SELL AND LEASE
After an Event of Default the Financier may do any of the following:
(a) (SELL) sell or help sell the Charged Property on the terms and
in the manner it thinks fit, whether or not the Financier has
taken possession; and
(b) (OPTIONS) give an option to purchase the Charged Property on the
terms it thinks fit; and
(c) (SEVER FIXTURES) sever fixtures belonging to the Chargor and
sell them apart from the Charged Property; and
(d) (LEASE, ETC) lease the Charged Property or give licences or
rights over the Charged Property in the name of the Chargor or
otherwise (whether or not the Financier has taken possession)
for whatever term, at whatever rent or fee and on whatever terms
the Financier thinks fit; and
(e) (DEAL WITH LEASES) renew, vary, accept the surrender of or
terminate a lease or licence of the Charged Property; and
(f) (SELL OR LEASE TOGETHER WITH OTHER PROPERTY) sell or lease the
Charged Property with any other property in any manner that the
Financier thinks expedient, with full power to apportion costs,
expenses, purchase money and rent between the properties sold or
leased; and
(g) (HIVE OFF ASSETS OR OBLIGATIONS) promote the formation of any
company so that the company may purchase or acquire the Charged
Property or assume obligations of the Chargor or both; and
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(h) (EFFECT HIVE-OFF) sell or assign the Charged Property or assume
the Chargor's obligations.
10.7 TO APPOINT RECEIVERS
After an Event of Default, the Financier may:
(a) appoint one or more persons to be a Receiver or Receivers of the
Charged Property, with the powers and rights described in this
clause 10 (or such lesser powers as the Financier determines);
and
(b) remove that Receiver or those Receivers; and
(c) if a Receiver is removed, retires or dies, appoint another or
others in his or her place; and
(d) in the case of removal or retirement of a Receiver, reappoint
that person.
10.8 TO APPOINT MORE THAN ONE RECEIVER
If the Financier appoints two or more persons to be the Receiver, the
Financier may appoint them to act jointly, severally or jointly and
severally. If it is not specified in the instrument of appointment, the
Receivers are appointed to act severally.
10.9 TO PAY THE RECEIVER
The Financier may fix the remuneration of a Receiver at an amount agreed
between the Financier and the Receiver.
10.10 NOTICE OR LAPSE OF TIME REQUIRED BEFORE RIGHTS EXERCISED
(a) If notice or lapse of time is required under any statute before
the Financier can exercise its power of sale or any other rights
available to it under this document or by law, then that notice
or lapse of time is dispensed with.
(b) Paragraph (a) only applies if the relevant statute allows notice
or lapse of time to be dispensed with.
(c) If the relevant statute does not allow notice or lapse of time
to be dispensed with, but allows it to be shortened, then for
the purposes of this document, the period of notice or lapse of
time is one day.
10.11 TO GIVE UP POSSESSION AND TERMINATE RECEIVERSHIP
The Financier may:
(a) give up possession of the whole or any part of the Charged
Property; or
(b) terminate a receivership,
or both.
10.12 PERSONS DEALING NOT BOUND TO ENQUIRE
A person dealing with the Financier or a Receiver or Attorney:
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(a) need not enquire whether there has been a default by the Chargor
under a Relevant Agreement or whether the Financier, Receiver or
Attorney has acted properly; or
(b) need not enquire whether the Financier, a Receiver or an
Attorney has executed or registered an instrument or exercised a
right, power or remedy properly or with authority,
and whenever the Financier, a Receiver or an Attorney deals with the
Charged Property, that dealing is authorised and valid as far as anyone
involved with that dealing is concerned. The receipt of the Financier or
a Receiver or Attorney for any money payable to the Chargor discharges
the person paying that money to the extent of the payment.
10.13 RESPONSIBILITY FOR LOSS
The Financier is not responsible for a loss arising in connection with
it exercising or failing to exercise its powers under a Relevant
Agreement nor for an act or failure of an employee or agent of the
Financier or any Receiver. The Financier need not account for more money
than it actually receives.
11. RECEIVER'S POWERS
11.1 GENERAL
Unless the terms of the Receiver's appointment say otherwise, the
Receiver has the following powers over the Charged Property which the
Receiver is appointed to deal with:
(a) all the rights and powers given by law to mortgagees in
possession, receivers or receivers and managers; and
(b) all the rights and powers of the Financier under this document
and at law (other than the power to appoint Receivers); and
(c) power to obtain financial accommodation from the Financier,
alone or together with any other person, for a purpose and on
the terms that the Receiver considers expedient in connection
with the Charged Property; and
(d) power to secure the payment or repayment of indebtedness
relating to that financial accommodation by a Security Interest
over the Charged Property, however it ranks for priority with
the Charge or a Collateral Security.
The Receiver may exercise these rights and powers in the name of the
Chargor or otherwise.
11.2 RECEIVER IS AGENT OF CHARGOR
A Receiver is the agent of the Chargor. The Chargor alone is responsible
for the Receiver's acts and defaults. But the Receiver, to the extent
required by law, ceases to be the agent of the Chargor if a resolution
is passed or an order is made to Wind Up the Chargor. The Receiver may
become the agent of the Financier if the Financier gives a
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notice to the Receiver in writing to that effect. The Financier may
appoint a further Receiver, despite that resolution or order.
11.3 ACCOUNTABILITY OF RECEIVER
A Receiver is not responsible for a loss arising in connection with the
exercise or execution of the Receiver's powers, nor for any act or
default of an employee or agent of the Financier or the Receiver. A
Receiver need not account for more money than the Receiver actually
receives.
12. POWER OF ATTORNEY
12.1 APPOINTMENT AND POWERS
The Chargor for valuable consideration irrevocably appoints the
Financier, each Authorised Officer of the Financier and each Receiver
separately as its attorneys to do the following on the Chargor's behalf
and in the name of the Chargor or the Attorney after the occurrence of
an Event of Default or Potential Event of Default:
(a) anything which the Chargor must do under a Relevant Agreement;
and
(b) anything which, in the opinion of the Attorney:
(i) would give effect to a right, power or remedy of the
Financier or a Receiver; or
(ii) the Chargor should do,
under a Relevant Agreement or by law; and
(c) enter into or execute transactions, documents and agreements
which, in the opinion of the Attorney, the Chargor should enter
into or execute under a Relevant Agreement; and
(d) use the Chargor's name to exercise the powers of the Financier
or a Receiver under a Relevant Agreement, the law or otherwise,
and the Chargor agrees to ratify anything done by an Attorney under this
power of attorney.
12.2 ATTORNEY MAY DELEGATE POWERS
An Attorney may delegate its powers (including the power to delegate) to
any person for any period and may revoke the delegation.
12.3 PURPOSE
The power of attorney created under this clause is irrevocable and is
granted to secure the performance by the Chargor of the Chargor's
obligations under each Relevant Agreement to which the Chargor is a
party.
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13. NOTICES AND DEMANDS FROM THE FINANCIER
13.1 SIGNING
A notice from or demand by the Financier to or on the Chargor may be
signed by an Authorised Officer of the Financier or by a solicitor
acting for the Financier. This signature may be handwritten or printed
or reproduced by other means.
13.2 SENDING
In addition to any method of service provided for by statute, a notice
from or demand by the Financier is given to or made on the Chargor if it
is:
(a) sent by facsimile to the facsimile number of the Chargor last
known to the Financier or, if more than one facsimile number is
known to the Financier, to any of those facsimile numbers; or
(b) left for the Chargor or sent by prepaid mail (and by airmail if
to an address outside Australia) to the Chargor at:
(i) the address of the Chargor set out in this document; or
(ii) the Chargor's usual place of business last known to the
Financier; or
(iii) the Chargor's registered office; or
(iv) premises owned or occupied by the Chargor.
13.3 VALIDITY
A notice or demand is validly given even if:
(a) the Chargor has been Wound Up or the Chargor is absent from the
place the notice or demand is left at, or delivered or sent to;
or
(b) the notice or demand is returned unclaimed.
13.4 RECEIPT
A notice or demand is taken to have been received by the Chargor:
(a) if delivered personally, on the same day; and
(b) if posted to an address in Australia, on the second Business Day
after it was posted; and
(c) if posted to an address outside Australia, on the fourth
Business Day after it was posted; and
(d) if sent by facsimile, when a transmission report is produced by
the sender's facsimile machine indicating that the notice or
demand has been sent to the relevant number.
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14. PRESERVING THE FINANCIER'S RIGHTS, POWERS AND REMEDIES
14.1 PRESERVATION
(a) The fact that the Financier does not exercise, or delays the
exercise of, any right, power or remedy does not affect any of
its other rights, powers or remedies.
(b) The fact that the Financier delays the exercise of any right,
power or remedy does not constitute a waiver of that right,
power or remedy.
(c) The fact that the Financier exercises a right, power or remedy
does not prevent the Financier from exercising that right, power
or remedy again.
(d) This document does not operate to extinguish or prejudice any
right, power or remedy of the Financier under a Relevant
Agreement or in connection with the Secured Money.
14.2 MORATORIUM LEGISLATION
A moratorium does not apply to a Relevant Agreement or the recovery of
the Secured Money except if:
(a) the Financier agrees in writing that it does; or
(b) it cannot be excluded by law.
14.3 REINSTATING OR REPLACING RIGHTS
If any payment made to the Financier in reduction of the Secured Money
is repaid or void or conceded to be void, voidable or repayable for any
reason, then, despite any release, settlement or discharge in connection
with the Secured Money:
(a) that payment has not discharged the relevant liability; and
(b) the Financier may recover the amount of that payment from the
Chargor; and
(c) the Chargor must:
(i) immediately do all acts and things the Financier
requires to replace or reinstate the Charge and any
Collateral Security which has been released in
connection with that payment; and
(ii) indemnify the Financier against and pay on demand all
costs and expenses in connection with replacing or
reinstating the Charge and any Collateral Securities.
14.4 EFFECT OF RELEASE
(a) A full or partial release of this Charge by the Financier does
not release the Chargor from personal liability under this
document until the Financier receives the Secured Money,
regardless of any:
(i) receipt given, payout figure quoted or other form of
account stated; or
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(ii) error or miscalculation by the Financier.
(b) Each indemnity given by the Chargor to the Financier under this
document is a continuing indemnity. A full or partial release of
this Charge does not release the Chargor from liability under an
indemnity unless the release is specifically of that indemnity.
15. MISCELLANEOUS
15.1 NO OBLIGATION TO EXERCISE RIGHTS OR GIVE CONSENT
Each of the Financier and a Receiver may:
(a) exercise or not exercise any right, power or remedy; and
(b) give or not give consent; and
(c) make or not make a decision,
under this document, in its absolute discretion without giving a reason
and without being liable or accountable for the consequences. In
relation to the giving or not giving of consent, the Financier will act
in a manner which the Financier determines in its absolute discretion to
be reasonable. Such determination shall not be questioned by the
Chargor.
15.2 CONSENT MUST BE IN WRITING
A consent given or a right, power or remedy waived by the Financier is
effective only if given or waived in writing.
15.3 NOTIFICATION FROM CHARGOR
If the Chargor is required under this document to notify the Financier
about anything, the Chargor must do so in writing.
15.4 FINANCIER MAY SET OFF
Without any demand or notice, the Financier may set off and apply
indebtedness it owes to the Chargor (whatever the currency) against the
Secured Money:
(a) whether the indebtedness is owed alone or with any other person;
and
(b) whether or not the Secured Money or that indebtedness is
immediately payable.
15.5 CHARGOR MUST NOT SET OFF
The Chargor must not claim, exercise or attempt to exercise a right of
set-off or any other right which might reduce or discharge the Secured
Money.
15.6 NO MARSHALLING
The Financier need not resort to a Collateral Security or other Security
Interest before exercising a power under this document.
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15.7 SUSPENSE ACCOUNT
The Financier may credit money received in or towards satisfaction of
the Secured Money to a suspense account. The Financier may keep the
money in that account for as long as the Financier thinks fit. Interest
will not accrue on such account. The Financier may apply the money to
reduce the Secured Money whenever it thinks fit.
15.8 SURPLUS PROCEEDS
If surplus money remains in the hands of the Financier or a Receiver
after payment of all the Secured Money (and satisfaction of any
obligation ranking in priority to the Secured Money or secured by a
Security Interest over the Charged Property):
(a) no trust arises over that surplus money; and
(b) that surplus money does not carry interest and the Financier or
Receiver may pay it to an account in the name of the Chargor
(whether or not opened by the Financier or Receiver for that
purpose). The Financier or Receiver is then no longer liable for
the surplus money.
15.9 APPLYING RECEIPTS
The Financier may apply or appropriate money received to reduce the
Secured Money in the order, and to satisfy whatever part of the Secured
Money, the Financier sees fit.
15.10 TACKING
For the purpose of applying section 282 of the Corporations Law or any
equivalent provision in any jurisdiction, if the Financier is obliged to
make further advances under a Relevant Agreement, that Relevant
Agreement is taken to be incorporated in this document so that this
document imposes on the Financier an obligation to advance that money.
15.11 THE FINANCIER MAY ASSIGN RIGHTS
The Financier may assign or otherwise deal with its rights and benefits
under this document.
15.12 THE FINANCIER MAY DISCLOSE INFORMATION
The Financier may disclose to a potential assignee or participant any
information about the Chargor, any Debtor or a Relevant Agreement which
it considers appropriate.
15.13 CERTAIN NOTICES OR DEMANDS
A notice from or demand by the Financier stating:
(a) that a specified sum of money is owing or payable (or both)
under a Relevant Agreement; or
(b) that an Event of Default has occurred; or
(c) something relevant to the rights or obligations of the Financier
or the Chargor under a Relevant Agreement,
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is admissible in proceedings and is conclusive evidence of the matters
stated except if there is manifest error.
15.14 IF DUE DATE NOT A BUSINESS DAY
If anything should be done under this document on a day that is not a
Business Day, it must be done on the previous Business Day.
15.15 SEVERABILITY
(a) A construction of this document that results in all provisions
being enforceable is to be preferred to a construction that does
not so result.
(b) If, despite the application of paragraph (a), a provision of
this document is illegal or unenforceable:
(i) and it would be legal and enforceable if a word or words
were omitted, that word or those words are severed; and
(ii) in any other case, the whole provision is severed,
and the remainder of this document continues in force.
15.16 GOVERNING LAW AND JURISDICTION
This document is governed by the law of Queensland, except:
(a) as required by mandatory provisions of law;
(b) to the extent that the validity, perfection or enforceability of
any of the security interests hereunder, or remedies hereunder,
are dependent on the laws of a jurisdiction other than
Queensland, in which case the governing law shall (to that
extent only) be the law of that jurisdiction.
The parties hereto agree and intend that:
(c) a proper forum/jurisdiction for any litigation or process
arising out of or related to this Agreement shall be any court
located in Queensland; and
(d) a proper forum/jurisdiction for any litigation or process in
respect of any of the Charged Property located in a jurisdiction
other than Queensland shall be any court located either in
Queensland or that other jurisdiction.
The Chargor irrevocably and unconditionally submits to the non-exclusive
jurisdiction of the courts of Queensland and/or the other jurisdiction
referred to in paragraph (e) (as the case may be). The Chargor, to the
extent permitted by applicable laws, hereby expressly waives any defence
or objection to jurisdiction or venue based on the doctrine of forum non
conveniens, and stipulates that the courts of Queensland and/or that
other jurisdiction (as the case may be) shall have in personam
jurisdiction and venue over it for the purpose of any such litigation or
process arising out of or related to this document.
15.17 AGENT FOR SERVICE OF PROCESS
The Chargor, having its registered office outside Queensland:
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(a) irrevocably appoints Xxxxxxx Restaurants Management Pty Ltd ACN
093 912 979 ('CRM') as its agent for service of process relating
to any proceedings before the courts and appellate courts of the
State of Queensland in connection with this document;
(b) failure by CRM to notify to the process will not invalidate the
proceedings concerned; and
(c) agrees that nothing shall affect the right to serve process in
any other manner permitted by law.
15.18 FINANCIER NEED NOT EXECUTE
This document is enforceable by the Financier even if the Financier does
not execute it.
SCHEDULE A
The Charged Property includes, without limitation, all of the following
property, assets and rights of the Chargor, whether now owned or
hereafter acquired: accounts, general intangibles, rights to payment of
money, rights and benefits under contracts and agreements, tax refunds,
insurance proceeds, instruments, chattel paper, letters of credit,
promissory notes, drafts, bills of exchange, trade acceptances,
documents, inventory, goods, copyrights, patents, trademarks, equipment,
motor vehicles, documents of title, investment property, and all other
tangible and intangible property, including without limitation, proceeds
and products of the foregoing, and books and records relating to the
foregoing.
All terms used in this Schedule A shall have the definitions set forth
in the Commercial Code of the State of California.
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EXECUTED as a deed.
THE COMMON SEAL OF SIZZLER ASIA )
HOLDINGS INC. is affixed in )
accordance with its constituent )
documents in the presence of )
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Authorised Officer/Director Authorised Officer/Director
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Please Print Full Name Please Print Full Name
