EXHIBIT 3.6
▇▇▇▇▇▇▇ FOODS INTERNATIONAL PTY LTD
ARBN ▇▇▇ ▇▇▇ ▇▇▇
WESTPAC BANKING CORPORATION
ARBN 007 457 141
FIXED AND FLOATING CHARGE
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Lawyers
Waterfront Place
▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
DX 102 BRISBANE
Telephone (▇▇) ▇▇▇▇ ▇▇▇▇
Facsimile (▇▇) ▇▇▇▇ ▇▇▇▇
FIXED AND FLOATING CHARGE
DEED dated 1997
BETWEEN ▇▇▇▇▇▇▇ FOODS INTERNATIONAL PTY LTD ARBN ▇▇▇ ▇▇▇ ▇▇▇ OF ▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
(`CHARGOR')
AND WESTPAC BANKING CORPORATION ARBN 007 457 141 OF ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ (`FINANCIER')
1. INTERPRETATION
2.1 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 ▇▇▇ ▇▇▇▇
(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 person holding or acting in the office of
director, chief executive or secretary, or whose title includes the word
`Manager' or `Director'.
`BUSINESS DAY' means a day on which banks (as defined in the Banking ▇▇▇
▇▇▇▇ (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.
`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, ▇▇▇▇▇▇▇ Foods International Pty
Ltd 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.
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3.1 OTHER EXPRESSIONS
In this document, unless the contrary intention appears:
(a) the singular includes the plural and vice versa;
(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 ▇▇▇ ▇▇▇▇
(Cth) or the equivalent State legislation, as applicable.
4. CHARGE
5.1 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.
6.1 FIXED CHARGE
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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
(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
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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.
7.1 FLOATING CHARGE
The Charge is a floating charge on the rest of the Charged Property.
8.1 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:
(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
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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.
9.1 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.
10.1 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.
11.1 PRIORITY AMOUNT - MAXIMUM PROSPECTIVE LIABILITY
The maximum prospective liability secured by the Charge is
$200,000,000.00. 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
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document.
12.1 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.
13. PAYMENT OBLIGATIONS
14.1 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.
15.1 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
(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.
16.1 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
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(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.
17.1 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.
18.1 LOSS RESULTING FROM EVENT OF DEFAULT
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.
19.1 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.
20.1 CURRENCY INDEMNITY
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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.
21. CHARGOR'S OTHER OBLIGATIONS
22.1 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
(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
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(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.
23.1 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 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
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(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, other than as part of the `global interestate
settlement' approved by the United States Bankruptcy Court for the
Central District of California in In re Sizzler International, Inc.
Case No. SV 96-16076-AG, by order entered August 6, 1997.; 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.
24.1 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
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(`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;
(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.
25. CHARGOR'S INSURANCE OBLIGATIONS
26.1 POSITIVE OBLIGATIONS
The Chargor must:
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(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:
(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.
27.1 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;
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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.
28.1 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) ▇▇▇ 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.
29.1 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.
30. CHARGOR'S REPORTING OBLIGATIONS
31.1 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
16
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.
32. ACCESS TO AND INVESTIGATION OF RECORDS AND LAND
33.1 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
(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.
34.1 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
17
(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.
35. BETTER SECURITY AND RIGHTS FOR FINANCIER
36.1 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.
37.1 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.
38. 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.
39. FINANCIER'S POWERS
40.1 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,
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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.
41.1 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.
42.1 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
(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
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(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 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
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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.
43.1 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.
44.1 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
21
(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.
45.1 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
(h) (EFFECT HIVE-OFF) sell or assign the Charged Property or assume the
Chargor's obligations.
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46.1 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.
47.1 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.
48.1 TO PAY THE RECEIVER
The Financier may fix the remuneration of a Receiver at an amount agreed
between the Financier and the Receiver.
49.1 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.
50.1 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.
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51.1 PERSONS DEALING NOT BOUND TO ENQUIRE
A person dealing with the Financier or a Receiver or Attorney:
(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.
52.1 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.
53. RECEIVER'S POWERS
54.1 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.
55.1 RECEIVER IS AGENT OF CHARGOR
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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 notice to the
Receiver in writing to that effect. The Financier may appoint a further
Receiver, despite that resolution or order.
56.1 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.
57. POWER OF ATTORNEY
58.1 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.
59.1 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.
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60.1 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.
61. NOTICES AND DEMANDS FROM THE FINANCIER
62.1 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.
63.1 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.
64.1 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.
65.1 RECEIPT
A notice or demand is taken to have been received by the Chargor:
26
(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.
66. PRESERVING THE FINANCIER'S RIGHTS, POWERS AND REMEDIES
67.1 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.
68.1 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.
69.1 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
27
(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.
70.1 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
(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.
71. MISCELLANEOUS
72.1 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.
73.1 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.
74.1 NOTIFICATION FROM CHARGOR
28
If the Chargor is required under this document to notify the Financier
about anything, the Chargor must do so in writing.
75.1 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.
76.1 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.
77.1 NO MARSHALLING
The Financier need not resort to a Collateral Security or other Security
Interest before exercising a power under this document.
78.1 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.
79.1 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.
80.1 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.
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81.1 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.
82.1 THE FINANCIER MAY ASSIGN RIGHTS
The Financier may assign or otherwise deal with its rights and benefits
under this document.
83.1 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.
84.1 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,
is admissible in proceedings and is conclusive evidence of the matters
stated except if there is manifest error.
85.1 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.
86.1 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,
30
and the remainder of this document continues in force.
87.1 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.
88.1 FINANCIER NEED NOT EXECUTE
This document is enforceable by the Financier even if the Financier does
not execute it.
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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 ▇▇▇▇▇▇▇ FOODS )
INTERNATIONAL PTY LTD ARBN ▇▇▇ ▇▇▇ ▇▇▇ 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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