DRILLING RIG SALE AND PURCHASE AGREEMENT
BETWEEN:
TD INTERNATIONAL SA
("TDI")
XXXXX OIL COMPANY, INC.
(`Xxxxx")
XXXXXX EXPLORATION PTY LTD
(ACN 073 039 059) ("Xxxxxx")
DESCO INCORPORATED
("DESCO")
AND
XXXXX X XXXXX ("Xxxxx")
THIS AGREEMENT is made the _________ day of _________, 1998.
BETWEEN:
TD INTERNATIONAL SA a company registered in Panama, with its principal place of
business at 00 Xxxx Xxxxxx 0, Xxxxxxxxx 000000 ("TDI")
XXXXX OIL COMPANY, INC. a Utah corporation with its principal place of business
at XX Xxx 0000 Xxxxxxxx, Xxxxxxx ("Xxxxx" and sometimes collectively with Xxxxxx
"the Sellers") XXXXXX EXPLORATION PTY LTD (ACN 073 039 059) a company registered
in Australia and a wholly owned subsidiary of Xxxxx with its principal place of
business at Suite 3, CCH House, 000 Xxxxxxxxx Xxxx, Xxxxxxxx 0000 Xxxxx
Xxxxxxxxx ("Xxxxxx") DESCO INCORPORATED a Philippines corporation having its
registered office at KM, 00 Xxxxxxxx Xxxx, Xxxx Xxxxxxx Xxxx, Xxxxxxxxx Xxxx,
Xxxxxxxxxxx ("DESCO") AND XXXXX X XXXXX X/- 00 Xxxx Xxxxxx 0, Xxxxxxxxx 000000
("Xxxxx")
RECITALS
A. Pursuant to a Rig Sale, Purchase and Utilisation Agreement dated 13
November 1997, between the Sellers and TDI ("the Purchase Agreement"),
Xxxxxx owns an undivided 50% interest in and to a Xxxxxx Cabor 1000hp
drilling rig and all equipment associated therewith as described in Part 1
of Exhibit A to the Purchase Agreement ("the Rig").
B. Pursuant to the operation of a drilling agreement between Monument
Resources (Overseas) Limited having its registered office at Cedar house,
41 Cedar House,Xxxxxxxx XX 12 Bermuda "(Monument") and DESCO ("the Monument
Drilling Agreement"), DESCO and in respect of the drilling of a well in
Laos within licence known as BLOCK MROL/SDC, DESCO has acquired a rig camp
and the camp's inventory ("the Camp") as described in Schedule VI to the
Monument Drilling Agreement.
C. Pursuant to a Master Drilling Contract between TDI and Xxxxxx dated 22
April 1998, ("the TDI Drilling Contract"), TDI has agreed to drill and
complete one exploration well on Exploration Permit 18 in the Northern of
Australia ("EP 18") as described in the Drilling Order attached to the TDI
Drilling Contract, using the Rig.
X. Xxxxx is a shareholder and director of TDI and DESCO.
X. Xxxxxx wishes to sell and TDI has agreed to buy, Xxxxxx'x 50% undivided
interest in the Rig, subject to the terms and conditions set out in this
Agreement.
NOW, THEREFORE the parties hereto agree as follows:
1. Purchase and Sale
Subject to the terms and conditions of this Agreement, effective as of the
Closing Date, Xxxxxx sells to TDI and TDI buys from Xxxxxx, Xxxxxx'x
undivided 50% interest in the Rig, free from any encumbrance, security or
third party interest.
2. Purchase Price
In consideration for the purchase of Xxxxxx'x interest in the Rig as
referred to in clause 1 TDI will:
2.1 pay to Xxxxxx (or its nominee) by bank cheque or wire transfer,
immediately available funds of US$300,000 payable as follows:
2.1.1 US$50,000 on the Closing Date; and
2.1.2 US$50,000 for each of the next remaining 5 quarters payable
by 1 January 1999, 30 March 1999, 30 June 1999,
30 September 1999, and 1 January 2000, respectively.
2.2 transfer to such agent as nominated by Xxxxx, all shares of Xxxxx'x
common stock held by TDI, being 806,667 shares in such common stock
("the Shares") together with all options in Xxxxx'x common stock held
by TDI being options to purchase an additional 500,000 shares in
common stock of Xxxxx; and
DESCO will on the Completion Date:-
2.3 TRANSFER TO XXXXXX FREE FROM ANY ENCUMBRANCE, SECURITY OR THIRD PARTY
INTEREST, ALL ITS RIGHT, TITLE AND INTEREST IN THE CAMP, THE VALUE OF
WHICH FOR THE PURPOSES OF THIS AGREEMENT IS AGREED TO BE US$121,626.00
3. Interest
3.1 TDI shall pay interest on the unpaid balance of the purchase price and
on overdue monies to Xxxxxx
3.2 Interest shall be paid by TDI in arrears:
3.2.1 at the time that installments of the balance of the
purchase price are paid to Xxxxxx until the installment
becomes due and owing; and
3.2.2 upon demand on overdue monies.
3.3 The interest rate:
3.3.1 on the unpaid balance of the purchase price until it becomes
due and owing will be the higher rate but if:
3.3.1.1 an interest payment calculated at the lower rate
is receive by Xxxxxx on or before the relevant
interest payment date; and
3.3.1.2 on that interest payment date there is no unwaived
and continuing event of default, Xxxxx shall
accept that payment for the period to which it
relates instead of an interest payment calculated
at the higher rate; and
3.3.2 on overdue monies will be the higher rate.
3.1 For the purposes of this clause:
3.4.1 "Higher rate" means 10% per annum;
3.4.2 "Lower rate" means 8% per annum; 3.4.3 "Interest payment
date" means the date that the installments referred to in
clause 2.1 are due and payable.
4. Time and Place of Closing
Closing is to occur within 7 days of the execution of this Agreement by the
parties, at such place or in such manner as the parties may agree (the
"Closing Date").
5. Obligations of TDI/DESCO at Closing
5.1 At the Closing:-
5.1.1 TDI must deliver to Xxxxxx all certificates held by it in
respect of the Shares together with such duly executed
transfer forms or other documents in respect of the Shares
as Xxxxxx or Xxxxx may so request;
5.1.2 TDI must pay to Xxxxxx (or its nominee) the amount of US
$100,000 in the manner as set out in clause 2.1;
5.1.3 DESCO shall deliver to Xxxxxx a Xxxx of Sale in the form of
Annexure "A" hereto, duly executed by DESCO and such other
certificates of title and other instruments as shall be
necessary to vest right, title and interest in the Camp to
Xxxxxx.
6. Re-Location of Camp
TDI and/or DESCO within sixty (60) days after execution of this Agreement
shall move the Camp at its cost to the port of Laem Chabang, Thailand and
Xxxxxx will take possession of the Camp at that point. Notwithstanding the
handover at the Closing to Xxxxxx of a Xxxx of Sale in respect of the Camp
all risk in relation to the Camp shall remain with TDI and DESCO, prior to
handover of possession to Xxxxxx in Thailand.
7. TDI Drilling Contract
7.1 Xxxxx and Xxxxxx acknowledge that TDI has requested that TDI be
released of its obligations under the TDI Drilling Contract to drill a
well on EP18 in accordance with the terms and conditions of that
Contract and TDI acknowledges that Xxxxxx has given certain
undertakings to Mataranka Oil N.L. and the Northern Territory
Department of Mines & Energy to drill a well on EP18 utilizing the Rig
pursuant to the TDI Drilling Contract.
7.2 Subject to clause 7.3, Xxxxx and Xxxxxx hereby release TDI from any
and all of its obligations under the TDI Drilling Contract and from
the date of execution hereof by the parties hereto, the TDI Drilling
Contract shall be deemed to have been terminated.
8. Security and Warranty
8.1 To ensure the fulfillment by TDI of its obligations under this
Agreement, TDI undertakes to execute in favor of Xxxxxx a charge over
the Rig in the form set out in Annexure "B".
8.2 TDI and Xxxxx jointly and severally warrant that as at the date hereof
and as at the Closing Date, TDI does and TDI will own its interest in
the Rig unencumbered and free from any prior mortgage, charge or other
security interest so that the charge shall be a first ranking charge
securing the indebtedness and performance of TDI under the terms of
this Agreement.
9. Undertaking by Xxxxx X. Xxxxx
Munnshereby guarantees the performance by each of TDI and DESCO of its
obligations under this Agreementincluding without limitation, the
performance of obligations arising under clause 7.3 above.
10. Applicable Law
This Agreement shall be governed by and construed in accordance with the
laws of South Australia.
11. Notices
All notices or other communications required or which may be give hereunder
shall be addressed to the party concerned at the relevant address give for
the party in this Agreement.
12. Entire Agreement
This instrument contains the entire Agreement between the parties and
supersedes all other prior negotiations, undertakings, notes, memoranda and
agreements, whether written or oral, concerning the subject matter hereof.
IN WITNESS WHEREOF, of the parties hereto have duly executed this Agreement by
their authorized representatives, respectively, as of the day and year first
above written.
TD INTERNATIONAL XX XXXXXX EXPLORATION PTY LTD
By: /s/ X.X. Xxxxx By: /s/ X.X. Xxxxxx
Name: X.X. Xxxxx Name: X.X. Xxxxxx
Title: Director Title: Managing Director
Date: 23/10/98 Date: 10 October 1998
DESCO INCORPORATED XXXXX OIL COMPANY, INC.
By: /s/ X.X. Xxxxx By: /s/ X. X. Xxxxxx
Name: X.X. Xxxxx Name: X.X. Xxxxxx
Title: Director Title: Managing Director
Date: 23/10/98 Date: 14 October 1998
XXXXX X XXXXX
/s/ X.X. Xxxxx
Date: 23/10/98
ANNEXURE A
Form of Xxxx of Sale
XXXX OF SALE
THIS XXXX OF SALE made as of the __________ day of ___________ 1998 is between
DESCO INCORPORATED a Philippines corporation having its registered office at KM,
00 Xxxxxxxx Xxxx, Xxxx Xxxxxxx Xxxx, Xxxxxxxxx Xxxx, Xxxxxxxxxxx ("Seller") and
XXXXXX EXPLORATION PTY LTD an Australian Company with offices at Suite 3, BCH
House, 000 Xxxxxxxxx Xxxx, Xxxxxxxx 0000, Xxxxx Xxxxxxxxx ("Buyer").
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and adequacy of which are
hereby acknowledged, Seller does hereby, bargain, sell, assign, transfer and set
over unto Buyer the Seller's right, title and interest in the rig camp and the
camp's inventory as described in Schedule VI to the drilling agreement between
the Seller and Monument Resources (Overseas) Limited and utilized by the Seller
in relation to the drilling of a well in Laos within license known as BLOCK
MROL/SDC ("the Camp").
TO HAVE AND TO HOLD the same unto Buyer, its successors and assigns forever.
Seller warrants title to the Camp and further warrants that the Camp is free and
clear of liens, charges, mortgages, interest, rights, claims and encumbrances
and Seller agrees to defend Buyer and its successors and assigns against all
persons or entities claiming or to claim any interest in the Camp.
Seller also assigns and transfers unto Buyer the Seller's rights and privileges
and with respect to any and all warranties relating to the Camp, to the extent
the same are assignable and transferable.
This Xxxx of Sale is made and given pursuant to the Agreement by and Among
Seller, TD International SA, Buyer, Xxxxx Oil Company and Xxxxx X. Xxxxx dated
of 23 October 1998 and the terms and conditions thereof, including
representations and warranties with respect to the Camp are incorporated herein
by this reference.
IN WITNESS WHEREOF Seller and Buyer have executed this Xxxx of Sale effective as
of 23 October 1998.
SELLER: BUYER:
DESCO INCORPORATED XXXXXX EXPLORATION PTY LTD
By:/s/ X.X. Xxxxx By: /s/ X.X. Xxxxxx
Name: Xxxxx X. Xxxxx Name: X.X. Xxxxxx
Title: Director Title: Managing Director
ANNEXURE B
Form of Mortgage
ANNEXURE "B"
THIS DEED OF CHARGE is made on ________________ 1998
BY
TD INTERNATIONAL S.A. a company registered in Panama with offices in
Singapore ("Mortgagor")
IN FAVOR OF:
XXXXXX EXPLORATION PTY LTD (ACN 073 039 059) a company registered in Australia
being a wholly owned subsidiary of Xxxxx Oil Company, a U.S. company registered
in the State of Utah, USA ("Creditor").
OPERATIVE PART
1. INTERPRETATION
1.1 Definitions
In this document, unless the context otherwise requires:
"Attorney" means any attorney appointed under Clause 14 and any person
who derives a right by delegation directly or indirectly from an
attorney. "Authorized representative" means in relation to any party:
(a) if that party is a corporation, a director or secretary of that
party'
(b) that party's lawyer; and
(c) a person appointed by that party to act as an authorized
representative for the purpose of this document and whose
appointment is notified in writing by the appointor to the other
party;
"Bankruptcy" means:
(a) in relation to any corporation the appointment of an
administrator, provisional liquidator or liquidator in respect of
it because it is or may be insolvent; and
(b) in relation to an individual, that person becoming an insolvent
under administration as defined in Section 9 of the Corporation
Law of Australia or any similar or equivalent legislation in any
relevant jurisdiction.
"Business day" means a day which is not a Saturday, Sunday or a
public or bank holiday in Australia;
"Credit support" means:
(a) any guarantee by which any person guarantees the payment of the
secured money;
(b) any security which secures:
(i) payment of the secured money; or
(ii) the payment of moneys or damages owing (actually or
contingently) from time to time by any guarantor in relation
to a guarantee of the payment of the secured money.
"Credit support provider" means a person:
(a) who has given a credit support; or
(b) who holds any property which is subject to a security which is a
credit support.
"Default Notice" means a notice under Clause 7(2).
"Encumbrance" in relation to any property means:
(a) any interest in or right over the property; and
(b) anything which prevents, restricts or delays;
(i) the exercise of any right over the property;
(ii) the use of the property; or
(iii)the registration of any interest in or dealing with the
property
"Event of default" means any event described in Clause 6.
"Financial indebtedness" of a person means any indebtedness or
liability (actual or contingent) relating to any guarantee given by it
or relating to any financial accommodation granted to it, including,
without limitation, any indebtedness or liability for payments in
respect of:
(a) moneys borrowed or raised by that person;
(b) the sale or negotiation of any xxxx of exchange or promissory
note;
(c) any finance lease or hire purchase agreement under which that
person is the lessee;
(d) the deferred purchase price of any property or services other
than indebtedness for the purchase price of trading stock
incurred by that person in the ordinary course of its ordinary
trading business;
(e) any redeemable preference share issued by that person.
"Government body" means
(a) any person, agency or other thing exercising an executive,
legislative, judicial or other governmental function of any
country or political sub-division of any country;
(b) any public authority constituted by or under a law of any country
or political sub-division of any country; and
(c) any person deriving a right by delegation directly or indirectly
from any other government body.
"Material adverse effect" means a material adverse effect upon either:
(a) the ability of the mortgagor to perform its obligations under
this document; or
(b) the effectiveness, priority or enforceability of this or any
other credit support. "Parts" means any parts, appliances,
instruments, accessories, furnishing and other equipment or
components including motors and engines which are from time to
time part of or used on the Rig.
"Potential event of default" means anything which the giving of notice
lapse of time or determination of materiality will constitute an event
of default.
"Receiver" means a receiver or receiver and manager appointed under
this document and any person who derives a right by delegation
directly or indirectly from any receiver.
"Remedy proceeds" means money received from the exercise of any right
against the secured property.
"Representative" of a person means an officer, employee, contractor or
agent of that person.
"Rig Agreements" means relating to the acquisition, servicing,
maintenance or repair of the secured property and includes, without
limitation, any warranty, condition or other obligations as to the
condition, quality or fitness for any purpose of the rig or the spare
parts.
"Rig" means Xxxxxx Cabot 1000hp drilling rig (Serial No. 31449) and
all equipment associated with it.
"Secured Money" means all money and damages which now or in the future
are owed (actually or contingently) by the mortgagor to the creditor
for any reason and, without limitation, includes money and damages
payable:
(a) by the mortgagor alone or jointly or severally with any other
person;
(b) if there is more than one mortgagor, by all or any of them;
(c) by the mortgagor in its own right or in any capacity;
(d) to the creditor in its own right or in any capacity;
(e) to the creditor pursuant to any assignment by any person to the
creditor of a debt payable by the mortgagor or other transaction,
including, without limitation, any assignment or other
transaction to which the mortgagor is not a party and
irrespective of whether before that assignment or other
transaction the payment of those monies was secured or unsecured,
interest was payable by the mortgagor on that debt or any other
thing;
(f) by the mortgagor as liquidated or unliquidated damages cause or
contributed to by any breach by the mortgagor or any obligation
owed by the mortgagor to the creditor, any tort by the mortgagor
or any other act or omission of the creditor; and
(g) by the mortgagor under this document.
"Secured Property" means:
(a) the rig;
(b) the spare parts;
(c) the technical records; and
(d) the mortgagor's rights under the rig agreements and the
mortgagor's copy or counterpart of the rig agreements.
"Security" means any instrument or transaction which reserves or
creates a security interest or under which a person agrees to create a
security interest.
"Security Interest" means an interest in or right over property which
secures the payment of a debt or other monetary obligation or the
performance of any other obligation.
"Spare Parts" means any spare engine, motor, parts, appliances,
instruments, accessories, furnishings and other equipment or
components which are from time to time kept by the mortgagor for
possible use on the rig.
"Taxes" means taxes, rates, levies, imposts and duties (other than
those on the net overall income of the creditor) and any interest,
penalties, fines and expenses relating to any of them.
"Technical Records" means in relation to the rig, all technical data,
manuals, logs, warranties of manufacturers and suppliers of the rig
and all service contracts relating to the rig and all Rig agreements.
1.2 General In this document, unless the context otherwise requires:
(a) a reference to any legislation or legislative provision includes any
statutory modification or re-enactment of, or legislative provision
substituted for, and any statutory instrument issued under, that
legislation or legislative provision;
(b) a word denoting the singular number includes the plural number and
vice versa;
(c) a word denoting an individual or person includes a corporation, firm,
authority, government body and vice versa;
(d) a word denoting a gender includes all genders;
(e) a reference to a clause of this document;
(f) a reference to any agreement or document is to that agreement or
document (and, where applicable, any of its provisions) as varied,
novated, supplemented or replaced from time to time; and
(g) a reference to any party includes that party's executors,
administrators, substitutes, successors and permitted assigns.
1.3 Headings and Parts of Speech In this document:
(a) headings are for convenience of reference only and do not affect
interpretation; and
(b) where an expression is defined, another part of speech or grammatical
form of that expression has a corresponding meaning.
2. SECURITY AND RELEASE
2.1 Security
The mortgagor charges the secured property to the creditor to secure the
payment of the secured money.
2.2 Release
The creditor shall at the request of the mortgagor discharge any charge
created by this document if the mortgagor's obligation to pay the secured
money is satisfied and in the creditor's opinion no payment towards the
satisfaction of the mortgagor's obligation to pay the unsecured money is
likely to be void or voidable under law relating to bankruptcy.
2.3 Consideration - Continuing Security
2.3.1The mortgagor has entered into this document for valuable
consideration from the creditor and receipt of the consideration is
acknowledged.
2.3.2This document is a continuing security for the whole of the secured
money.
3. PAYMENT AND INTEREST
3.1 Place manner and time of payment
The mortgagor, subject to Clause 7.2, shall pay the secured moneys to
the creditor in accordance with any agreement which obliges the
mortgagor to pay them and in the absence of agreement:
3.1.1upon demand at the time and place and in the manner reasonably
required by the creditor, and
3.1.2in immediately available funds and without set-off, counter
claims, conditions, or, unless required by law, deductions or
withholdings.
3.2 Interest
3.2.1The mortgagor shall pay interest on that part of the secured
money which is from time to time owing by the mortgagor to the
creditor.
3.2.2
(a)Interest shall be paid in accordance with any agreement
requiring interest to be paid on the secured money.
(b)Inthe absence of any agreement, the applicable interest rate
will be that determined from time to time by the creditor,
interest will accrue from day to day, interest will be
computed from and including the day when the moneys upon
which interest is payable become owing to the creditor by
the mortgagor until but excluding the day of payment of
those moneys and interest will be calculated on the actual
number of days elapsed on the basis of a 365 day year.
3.2.3The creditor may capitalize any part of any interest which
becomes due and owing on demand at the times determined by the
creditor and, if no determination is made, on the last day of
each month and interest shall be payable in accordance with this
document upon capitalized interest.
3.2.4If the liability of the mortgagor to pay to the creditor any
moneys payable under this document becomes merged in any deed,
judgement, order or other thing the mortgagor shall pay interest
on the amount owing from time to time under that deed, judgment,
order or other thing in accordance with this document.
3.3 Currency of Payment
3.3.1The mortgagor shall pay the secured money in the currency in
which it is payable under any agreement which obliges the
mortgagor to pay it and in the absence of agreement in the
currency reasonably required by the creditor.
3.3.2If the creditor accepts a payment under this document in a
currency other than that required by Clause
3.3.1that payment will not satisfy the amount due except to the
extent that the creditor could in the ordinary course of its
business buy with the payment received the required currency at
the time of or within a reasonable time after the payment after
the deduction of all costs relating to the purchase.
3.4 Appropriation
The creditor may, subject to any express provision in this document to
the contrary, appropriate any payment towards the satisfaction of any
moneys due by the mortgagor in relation to this document in any way
that the creditor requires and notwithstanding any purported
appropriation by the mortgagor.
3.5 Payments in Gross
The creditor in applying towards satisfaction of the secured money any
money received by it shall credit the mortgagor only with that part of
those moneys which is actually received by the creditor in immediately
available funds.
4. REPRESENTATIONS AND WARRANTIES
4.1 List
The mortgagor represents and warrants that:
4.1.1if the mortgagor purports to be a corporation, it is duly
incorporated in accordance with the laws of Panama validly exists
under those laws and has the capacity to xxx or be sued in its
own name and to own its property;
4.1.2
(a)this document is enforceable by the creditor in accordance
with its terms and is not void or voidable;
(b)any security interest which this document purports to create
is validly created and has the priority which ft purports to
have under this document or any priority agreement between
the mortgagor and the creditor;
4.1.3each authorization from a government body necessary to enable:
(a) the mortgagor to perform its obligations under this
document; and
(b) the creditor to exercise its rights under this document, has
been obtained.
4.1.4the unconditional execution and delivery of and performance by
the mortgagor of its obligations under this document does not
contravene:
(a) a law or directive from a government body;
(b) if the mortgagor is a corporation, the memorandum and
articles of association or other constitutional documents of
the mortgagor;
(c) an agreement or instrument to which the mortgagor is a
party; or
(d) an obligation of the mortgagor to any other person.
4.1.5all information given to and each statement made to the creditor
relating to this document by or at the direction of the mortgagor
is correct, complete and not misleading.
4.1.6except as notified to the creditor in writing prior to the date
of this document:
(a) no litigation, arbitration or administrative proceeding is
now current, pending or, to the knowledge of the mortgagor,
threatened which has or is likely to have a material adverse
effect;
(b) there are no encumbrances over the secured property other
than permitted encumbrances;
(c) there is no restriction on or proposal by any government
body or any other person to restrict the use of the secured
property or to resume the secured property, which has or is
likely to have a material adverse effect.
4.1.7no unremedied or unwaived event of default has occurred;
4.1.8each Rig agreement is enforceable by the creditor in accordance
with its terms and is not void or voidable;
4.1.9each authorization from a government body necessary to enable:
(a) the mortgagor unconditionally to execute and deliver and
perform its obligations under this document and carry on its
principal business or activity; or
(b) the creditor to exercise its rights under this
document, has been obtained.
4.1.10 all information given to and each statement made to the
creditor by or at the direction of the mortgagor in relation to
this document is correct, complete and not misleading.
4.2 General
4.2.1The interpretation of any statement contained in any
representation or warranty shall not be restricted by reference
to or inference from any other statement contained in any other
representation or warranty.
4.2.2The mortgagor acknowledges that the creditor has entered into
this document in reliance upon the representations and
warranties.
4.2.3Each representation and warranty will survive the execution of
this document and be deemed to be repeated with reference to the
facts and circumstances then existing whenever any financial
accommodation secured by this document is granted by the creditor
or any property becomes subject to any security interest created
by this document.
5. GENERAL UNDERTAKINGS
5.1 Prohibited dealings with variation of other secured indebtedness
5.1.1The mortgagor shall not cause or permit any person to acquire any
interest in the secured property except permitted encumbrances.
5.1.2The mortgagor shall not incur any debt or monetary obligation
(actual or contingent) to a holder, other than the creditor, of a
security interest over the secured property the payment of which
is secured by that security interest except financial
indebtedness incurred as a consequence of that holder granting
financial accommodation to the mortgagor or a person whose
obligations are guaranteed by the mortgagor to that holder in
accordance with an agreement existing at the date of this
document:
(i) which has been fully disclosed to and approved by the
creditor; and
(ii) under which the holder is, at the date of this document,
actually or contingently obliged to grant that financial
accommodation.
5.1.3The mortgagor, subject to Clause 5.1.2 shall not cause or permit
any person to acquire any interest in the secured property.
5.2 Title Documents
5.2.1
(i) The mortgagor shall upon the execution of this document by
the mortgagor deposit with the creditor the title documents
relating to the secured property;
(ii) The creditor may have possession and control of the title
documents unfit the creditor is obliged to release the
secured property from the security interest created by this
document.
(iii)The rights of the creditor under this Clause 5.2.1 are
subject to the rights of the holder of any other encumbrance
over the secured property which ranks in priority before any
security interest created by this document to have
possession of the title documents.
5.2.2The mortgagor may from time to time and at reasonable times at
its request and at its own cost and on payment of the creditors
costs and expenses relating to the exercise of the mortgagoes
right, inspect and make copies or abstracts of or extracts from,
the title documents or other documents relating to the secured
property in the possession or under the control of the creditor.
5.3 Material adverse effect The mortgagor shall use its best
endeavors to delay and prevent any occurrence in relation to the
secured property which has or is likely to have a material
adverse effect.
5.4 Mortgagor's other obligations
The mortgagor shall duly perform its obligations in relation to
the secured property, including, without limitation, under any
encumbrance over the secured property, under any law applicable
to the secured property and under any lawful direction from any
government body.
5.5 Creditor's right to entry and assistance
5.5.1The creditor and its nominees may at any reasonable time
enter on any property owned, used or occupied by the
creditor for any purpose related to this document.
5.5.2The mortgagor shall provide the creditor with all reasonable
assistance and facilities to enable the creditor to exercise
its rights under this document.
5.6 Information The mortgagor shall give to the creditor:
5.6.1full particulars of any event of default or potential event of
default immediately after its occurrence;
5.6.2upon receipt of a copy of any notice or order received from any
government body or any other person relating to any proposal in
relation to the secured property which if implemented may have or
be likely to have a material adverse effect;
5.6.3as soon as it is commenced or to the knowledge of the mortgagor
is threatened, full particulars of any litigation, arbitration or
administrative proceeding which affects the mortgagor or the
secured property and which may have a material adverse effect.
5.7 Further assurances
The mortgagor shall promptly execute any document and do anything else
that the creditor from time to time reasonably requires for further or
more perfectly:
5.7.1establishing the priority of this document and stamping and
registering it in any jurisdiction that the creditor demands;
5.7.2giving to the creditor the rights that this document purports to
give or which are contemplated by it;
5.7.3charging the secured property to the creditor.
5.8 Preservation and Enforcement Default
5.8.1The mortgagor shall take any action a prudent person would take
to preserve and enforce the mortgaged rights.
5.8.2The mortgagor shall not cause or permit an event of default to
occur.
5.9. Legislation compliance The mortgagor shall:
5.9.1
(i) cause the Rig at all times to remain duly registered or
licensed if required under any relevant legislation
applicable to the Rig either in the name of the mortgagor or
any other person who has, with the approval of the creditor,
possession or control of the Rig pursuant to a contract of
hire or charter and upon demand deliver to the creditor a
copy of any certificate of registration or licence;
(ii) notify any relevant government body of the security interest
created by this document;
5.9.2maintain and keep current any certificates and licences required
for the use and operation of the Rig;
5.9.3 not maintain, use or operate the Rig in violation of:
(i) any law of any government body which has jurisdiction over
the Rig;
(ii) any certificate, licence or registration relating to the
Rig; and without limitation, comply with all relevant
provisions of applicable legislation; and
5.9.4
(i) maintain all logs and other records which a prudent owner of
the Rig and spare parts would maintain, including, without
limitation, those required by relevant legislation to be
maintained;
(ii) promptly comply with any direction from any relevant
government body relating to the Rig;
(iii)immediately notify the creditor of any failure to comply
with any direction from any relevant government body or any
obligations imposed upon the mortgagor under relevant
legislation.
5.10 Rig Maintenance
The mortgagor shall:
5.10.1 maintain the Rig and spare parts in good operating condition,
ordinary wear and tear excepted, and without limitation,
maintain, service, repair, overhaul and test the Rig in
accordance with any direction or recommendation from any relevant
authority or the Rig's manufacturer;
5.10.2 not make any equipment changes which may reduce the value,
utility or condition of the Rig;
5.10.3 give by the creditor at 6 monthly intervals and otherwise when
required by the creditor a maintenance and servicing schedule for
the Rig and upon demand duly completed certificates acceptable to
the creditor evidencing completion of the maintenance and
servicing contemplated by the schedules; and
5.10.4 not do anything which will prejudice any rights of the
mortgagor or the creditor against any manufacturer or supplier or
any person who carries out work on the Rig.
5.11 Location, Use and Possession The mortgagor shall:
5.11.1 not cause or permit the Rig to be operated or the secured
property to be located:
(i) outside Laos or Thailand, or
(ii) in any area excluded from coverage by any insurance except
in the case of a requisition by or for an Australian
government body, where the mortgagor obtains an indemnity in
lieu of the insurance from that Australian government body
against the risks and for the amounts covered by the
insurance;
5.11.2 not register the ownership of the secured property under the
laws of any country except Panama, Australia or Singapore;
5.11.3 not use the Rig or spare parts for any purpose other than the
conduct of its business of the drilling of oil and gas xxxxx;
5.11.4 give to the creditor upon demand full particulars of the actual
and anticipated whereabouts of the secured property;
5.11.5 not permit any person to have possession or control of the
secured property except as contemplated by this document.
5.12 Inspection and copies
5.12.1 The creditor or its representatives may at any reasonable time
upon reasonable notice being given, inspect the secured property
and carry out any tests of it.
5.12.2 The mortgagor shall upon demand provide to the creditor copies
of any technical records or Rig agreements.
5.13 Replacement Parts The mortgagor shall promptly replace all parts that
are lost, stolen, destroyed, confiscated or unfit for use with
replacements which are:
5.13.1 owned by the mortgagor free of encumbrances (except permitted
encumbrances);
5.13.2 in good condition and fit for the purpose of the parts they
replace; and
5.13.3 of a value not less than those of the parts they replace.
5.14 Alteration The mortgagor may make any alteration to the Rig which is
necessary:
5.14.1 to comply with the requirements of any relevant government body
without limitation, to maintain any certificate, license or
registration applicable to the Rig;
5.14.2 for the proper and efficient use of the Rig by the mortgagor in
the ordinary course of its business if the alteration:
(i) does not lessen the value of the Rig or fitness fo the Rig
for the purpose for which it was designed, immediately
before the alteration was carried out;
(ii) meets any requirements of any relevant government body, and
(iii)does not prejudice the creditors security.
6. DEFAULT
Each of the following is an event of default (whether or not cause by
anything outside the control of the mortgagor);
(a) The mortgagor does not pay the secured money in accordance with this
document or perform its obligations under Clause 5.1.
(b) The mortgagor does not perform one of its other obligations under this
document and if that default is capable of rectification:
(i) it is not rectified within 10 business days (or any other longer
period agreed by the creditor) of its occurrence; and
(ii) the mortgagor does not during that period take all action which
in the creditor's opinion is necessary or desirable to quickly
remedy that default.
(c) A representation, warranty or statement made or deemed to be made by
the mortgagor in this document is untrue or misleading in any material
respect.
(d) This document is void, voidable or otherwise unenforceable by the
creditor or is claimed to be so by the mortgagor.
(e) A security interest which this document purports to create ceases to
have the priority which it purports to have under this document or
under any agreement between the mortgagor and the creditor or ceases
to secure the payment of the moneys or the performance of the
obligations which it purports to secure, otherwise than by any act of
the creditor;
(f) A distress, attachment or execution is levied or becomes enforceable
against any property of the mortgagor for an amount exceeding
$5,000.00 or its equivalent;
(g) An authorization from a government body necessary to enable:
(i) the mortgagor to perform its obligations under this document; or
(ii) the creditor to exercise its rights under this document; is
withdrawn or terminates.
(h) An event or series of events, whether related or not, including,
without limitation, any material adverse change in the property or
financial condition of the mortgagor, occurs which has or is in the
creditor's opinion likely to have a material adverse effect.
(i) Any person who holds a security over the secured property becomes
entitled to exercise a right under that security to recover any moneys
the payment of which is secured by that security or enforce any other
obligation the performance of which is secured by it;
(j) A default by the mortgagor or any event occurs which is or is deemed
to be or is defined as a default by the mortgagor;
(k)
(i) the bankruptcy of the mortgagor;
(ii) the mortgagor enters into an arrangement or compromise with, or
assignment for the benefit, of all or any class of its creditors
or members or a moratorium involving any of them;
(iii)the mortgagor being or staffing that it is unable to pay its
debts when they fall due;
(iv) the appointment of a receiver or receiver and manager in respect
of the mortgagor or any of its property;
(v) an application being made (which is not dismissed or withdrawn
within 10 business days) for an order, a resolution being passed
or proposed, a meeting being convened or any other action being
taken to cause anything described above;
(l)
(i) financial indebtedness of the mortgagor in excess of $5,000.00 or
its equivalent becomes due and owing or capable of being declared
due and owing before its stated maturity other than by the
exercise of an option of the mortgagor to pay it before its
maturity;
(ii) an obligation by any person to the mortgagor to provide financial
accommodation or to acquire or underwrite financial indebtedness
ceases before its stated maturity other than by the exercise of
an option of the mortgagor to cancel that transaction;
(iii)the mortgagor fails to pay when due and owing any financial
indebtedness in excess of $5,000.00 or its equivalent; or
(m) if the mortgagor is a corporation:
(i) the appointment of an official manager, provisional liquidator or
liquidator in respect of the mortgagor or the dissolution of the
mortgagor;
(a) reduces or attempts to reduce its capital other than by the
redemption of preference shares;
(b) passes or attempts to pass a resolution under Section 188(2)
or Section 205(10) of the Corporations Law or any similar or
equivalent statutory provision in any other jurisdiction; or
(c) takes any action to buy shares in itself, other than the
insertion in its articles of association of a provision to
the effect that the Mortgagor may buy ordinary shares in
itself;
(ii) an event described in Section 461 of the Corporations Law or any
similar or equivalent statutory provision in any other
jurisdiction occurs in respect of the mortgagor;
(iii)a share issued by the mortgagor is required to be redeemed or
repurchased before its stated maturity other than by the exercise
of an option of the issuer to redeem or repurchase;
(n) the mortgagor ceases or threatens to cease to carry on its business or
a substantial part of its business;
(o) a material part of the mortgaged goods are lost, stolen, damaged or
destroyed.
7. DEFAULT POWERS
7.1 General
(a) The creditor may, subject to the operation of any applicable law,
at any time after an event of default has occurred, exercise any
or all of the rights set out in this Clause 7 in any manner and
at any time, notwithstanding that a receiver has been appointed.
(b) The interpretation of any right set out in this Clause 7 shall
not be restricted by reference to or inference from any other
right.
7.2 Acceleration
If an event of default occurs the creditor may at any time by notice
to the mortgagor make:
(a) the secured money which is owing; and
(b) an amount equal to that part of the secured money which is
contingently owing by the mortgagor to the creditor, immediately
due and owing.
7.3 Statutory and implied Powers The creditor may exercise all rights
capable of being conferred by the statutes and other laws of any
relevant Jurisdiction upon mortgagees.
7.4 Dealings The creditor may:
(a) take possession or control of and get in the secured property;
(b) manage, quietly enjoy and otherwise deal with the secured
property;
(c)
(i) exercise the rights of the mortgagor and perform its
obligations in respect of the secured property and cause and
permit any other person to perform their obligations in
respect of the secured property;
(ii) vary, replace or release any right or interest of the
mortgagor or any other person;
(d) exchange any part of the secured property for any other property
and, if there is a difference in value between the property
exchanged, give or receive, as the case may be, any moneys or
other consideration equal to the difference in value in order to
give or receive equal value for the exchange;
(e) vary, replace, rescind or terminate any agreement relating to the
secured property to which it or the mortgagor is a party;
(f) the creditor may in the exercise of its rights under this Clause
7.4:
(i) break open any doors, windows, gates, fences or other
obstructions and otherwise employ reasonable force against
any property of any person; and
(ii) enter upon, occupy and use any property of or occupied by
the mortgagor upon which the mortgaged goods are situated
and go to and from that property over other property.
7.5 Investment of Moneys Any moneys received by the creditor which are not
required to be immediately applied in the exercise of any right or
pursuant to Clause 10 may be invested in any way authorized by the
laws of any relevant jurisdiction for the investment of trust moneys
and the creditor may vary or otherwise deal with the investment.
7.6 Ancillary Powers The creditor may:
(a) employ or engage any person for the purpose of exercising any of
the creditor's rights under this Clause 7;
(b) commence, defend, prosecute, settle, discontinue and compromise
litigation, administrative or arbitral proceedings relating to
the secured property;
(c) give receipts for and satisfy, release, or compromise any debt or
other obligation owed to or by the mortgagor in relation to the
secured property;
(d) enter into and execute and deriver documents and agreements
relating to the exercise of its rights under this Clause 7;
(e) delegate to any person any right (including this right of
delegaton) under this Clause 7; and do anything incidental or
conducive to the exercise of any of its rights under this Clause
7.
7.7 Receivers The creditor may:
(a) either before or after it has taken possession of the secured
property appoint in writing:
(i) any one or more persons to be a receiver and manager of the
secured property or a part of it; or
(ii) different receivers or receivers and managers for different
parts of the secured property;
(b) if more than one person is appointed as receiver of any property, the
creditor may appoint them jointly or jointly and severally;
(c) remove the receiver and appoint another if the receiver is removed,
retires or dies and, in the case of removal or retirement reappoint
that receiver; and
(d) fix the remuneration of the receiver.
8. RECEIVERS
8.1 Agent The creditor may appoint a receiver who will be the agent of
either:
(a) the mortgagor, who alone shall be responsible for the receiver's
acts and omissions and remuneration; or
(b) the creditor.
8.2 Powers
(a) A receiver shall have the right in relation to any property of
which the receiver is appointed to do everything that the
mortgagor may lawfully authorize an agent to do on behalf of the
mortgagor in relation to that property and, without limitation,
a receiver may in relation to that property exercise;
(i) the rights capable of being conferred upon receivers and
receivers and managers by the Corporations Law or any
similar or equivalent statutory provision in any other
Jurisdiction and statutes and laws of any relevant
Jurisdiction;
(ii) the rights of the creditor under this document except the
right to accelerate payment of the secured money and the
right to appoint a receiver;
(iii)the rights of the mortgagor and, if the mortgagor is a
corporation, the directors of the mortgagor; and
(iv) any other rights the creditor may by written notice to a
receiver give to a receiver.
(b) The creditor may by written notice to a receiver at the time of a
receivers appointment or any subsequent times give any rights to
or limit any rights of a receiver.
9. EXERCISE OF DEFAULT RIGHTS
9.1 No Hindrance The mortgagor shall not cause or permit the creditor, a
receiver or an attorney to be prevented or hindered from exercising
its rights under this document.
9.2 Mortgagee in possession
(a) If the creditor, a receiver or an attorney exercises its rights
under this document or takes possession of the secured property,
it will not be liable to account as mortgagee or chargee in
possession.
(b) If the creditor has taken possession of the secured property it
may give up possession of the secured property at any time.
(c) The obligations of the mortgagor under this document relating to
the secured property shall not be affected by the creditor, any
receiver or any attorney taking possession of the secured
property.
9.3 Exclusion of Legislation
(a) The provisions implied in securities by any statute will for the
purposes of this document be negatived or varied only so far as
they are inconsistent with the provisions of this document and
are otherwise varied so as to become consistent with this
document.
(b) Any statutory restrictions (other than mandatory restrictions)
upon any right of the creditor, receiver or attorney to deal
with the secured property will not apply to the rights of those
persons under this document.
9.4 Default Notice
(a) The mortgagor and the creditor, to the extent that any applicable
law permits, dispense with:
(i) any notice to the mortgagor (including, without limitation,
any notice identifying a default by the mortgagor, giving a
period to rectify it and staffing that the power to sell the
secured property, appoint a receiver to the secured property
or take possession of the secured property can be exercised
if the default is not rectified); or
(ii) any lapse of time (including, without limitation, a period
to rectify a default), prescribed by any statute or rule of
law or equity and which would otherwise be required to be
given or allowed before the creditor exercises its rights
relating to an event of default.
(b) If an applicable law requires notice to be given or a lapse of
time before any right can be exercised, then if no particular
period of notice or lapse of time is required, the period of
notice or lapse shall be one day.
10. APPLICATION OF MONEY
10.1 Method
The remedy proceeds shall, subject to any mandatory statutory
requirements, be applied or paid by the creditor, any receiver or any
attorney as follows:
(a) first, towards any moneys owing (actually or contingently) by the
mortgagor to any person who is, in the creditors opinion, the
holder of any security interest ranking in priority before any
security interested created by this document to the extent that
their security interest secures the payment of those moneys in
priority before the secured money;
(b) secondly:
(i) towards the secured money which is then due and owing and,
if any secured money is contingently owing or owing but not
due, in accordance with Clause 10.5 and the remedy proceeds
shall be appropriated between, those categories of secured
money as the creditor requires; and
(ii) to any person who is in the creditors opinion the holder of
any security interest in the secured property which ranks
equally with any security interest created by this document
to the extent that their security interest secures the
payment of those moneys equally with the secured money;
(c) thirdly, towards any moneys owing (actually or contingently) by
the mortgagor to any person who in the creditors opinion is the
holder of any security interest in the secured property which
ranks in priority after any security interest created by this
document to the extent that their security interest secures the
payment of those moneys in priority after the secured money; and
(d) fourthly, to any person entitled to the secured property or
authorized to give receipts for those moneys.
10.2 Creditor's certificate and disputes
(a) The creditor may rely upon a certificate issued by any person who
claims to be entitled to receive any of the remedy proceeds to
the effect that moneys are owing (actually or contingently) by
the mortgagor to it and stating the amount owing (actually or
contingently) without being obliged to make any further inquiry.
(b) If there is any dispute between any persons (other than the
creditor) as to who is entitled to receive the remedy proceeds,
the creditor may pay those moneys into court and if that is done
the creditor will have no further obligations in relation to
those moneys.
10.3 No interest or remedy proceeds The creditor is not obliged to pay
interest to any person upon the remedy proceeds.
10.4 Payment into bank account If the creditor pays any moneys into a bank
account in the name of any person to whom the creditor is obliged to
pay moneys under Clause 10.1 and notifies that person of the
particulars of the account the creditor will have no further
obligations- in relation to those moneys;
10.5 Contingent Debts If part of the secured money is in the opinion of the
creditor contingently owing or owing but not due and the creditor
receives any moneys pursuant to this document the creditor may:
(a) pay those moneys into a suspense account and hold them to secure
the payment of the secured money; and
(b) at any time appropriate any moneys in the suspense account
towards the satisfaction of any moneys due by the mortgagor to
the creditor in any way that the creditor requires, and when the
secured money is satisfied in full or the creditor no longer
holds that opinion, the creditor shall pay the balance to any
person entitled to the secured property or authorized to give
receipts for those moneys.
11. THIRD PARTY DEALINGS
11.1 Creditor's receipts and discharges The creditor may give valid
discharges and receipts for any moneys payable by any third party in
respect of any exercise of a right by the creditor, any receiver or
any attorney.
11.2 No duty to inquire
(a) Any person dealing with the creditor, any receiver or any
attorney in relation to the exercise by any of them of a right
under this document shall not be concerned to inquire whether:
(i) any event of default has occurred;
(ii) the receiver or attorney is properly appointed;
(iii)the right is otherwise properly exercised by that person;
and
(iv) any money's paid by it to the creditor, receiver or attorney
are properly applied, and the title of that person to any
property acquired by it from the creditor, receiver or
attorney, shall not be adversely affected by any improper
exercise of the right or application of moneys by the
creditor, any receiver or any attorney.
(b) The benefit of Clause
11.2
(a) is held on trust for the benefit of the creditor and each person
dealing with the creditor, any receiver or any attorney.
12. COSTS AND EXPENSES
12.1 General The mortgagor shall pay and if paid by the creditor reimburse
to the creditor:
(a) the creditor's reasonable costs and expenses relating to this
document, including, without limitation, those which the
mortgagor is liable to pay under any applicable law and those in
relation to:
(i) the negotiation, preparation, execution, stamping and
registration of this document;
(ii) any consent, request for consent, communication, the waiver
of any right or the variation or replacement of this
document;
(iii)the exercise or attempted exercise or the preservation of
any rights of the creditor under this document;
(iv) any event or default or potential event of default; and
(v) the creation, lodgment, registration or release of or any
dealing relating to any encumbrance, including any security
interest created by this document, over the secured
property; and
(b) any taxes and registration or other fees (and fines and penalties
relating to the taxes and fees) which are payable or are assessed
by a relevant government body to be payable in relation to this
document, any document contemplated by it or any transaction
contemplated by it.
12.2 Legal costs
A REFERENCE TO COSTS AND EXPENSES IN THIS DOCUMENT INCLUDES, WITHOUT
LIMITATION, LEGAL COSTS AND EXPENSES ON A FULL INDEMNITY BASIS.
12.3 Acts at mortgagor's expense
ANYTHING WHICH THIS DOCUMENT STATES IS TO BE DONE BY EITHER THE
CREDITOR OF THE MORTGAGOR IS TO BE DONE AT THE MORTGAGOR'S EXPENSE.
12.4 Remuneration
THE CREDITOR, ANY RECEIVER AND ANY ATTORNEY SHALL BE REMUNERATED BY
THE MORTGAGOR FOR ANY SERVICES RENDERED BY THEM IN RELATION TO THE
EXERCISE OF ANY RIGHT UNDER THIS DOCUMENT AND THE RATE OF THE
REMUNERATION AND THE MANNER OF PAYMENT WILL BE THAT DETERMINED BY THE
CREDITOR.
13. INDEMNITIES
13.1 General
The mortgagor indemnifies the creditor and each receiver and attorney
and their respective representatives and the representatives of the
creditor against any liability, loss, cost or expense caused or
contributed to by any event of default or the exercise or attempted
exercise of any right by the creditor, any receiver or any attorney
under this document.
13.2 Independence and survival
Each indemnity in this document is a continuing obligation, separate
and independent from the other obligations of the mortgagor and
survives the termination of this document.
13.3 Currency deficiency
If there is any deficiency between:
(a) an amount payable by the mortgagor under this document which is
received by the creditor in a currency other than the currency
payable under this document because of a judgment, order,
bankruptcy or otherwise; and
(b) the amount produced by converting the payment received from the
currency in which it was paid into the currency in which it was
agreed to be paid, the mortgagor shall pay to the creditor the
deficiency and any loss, cost or expense resulting from it.
14. ATTORNEY
14.1 Appointment and powers The mortgagor irrevocably appoints the creditor
its attorney with the right to do everything that the mortgagor may
lawfully authorize an agent to do in respect of the secured property.
14.2 General
(a) Any attorney may exercise its rights notwithstanding that the
exercise of the right constitutes a conflict of interest or duty.
(b) The mortgagor shall ratify any exercise of a right by an
attorney.
(c) The power of attorney is granted for valuable consideration
(receipt of which is acknowledged by the mortgagor) and to secure
the performance of the obligations of the mortgagor to the
creditor under this document and any proprietary interests of the
creditor under this document.
15. MISCELLANEOUS
15.1 Set-Off
The creditor may:
(a) set-off against the secured money any debt due and owing by the
creditor to the mortgagor, including, without limitation, any
moneys in any currency held by the creditor for the account of
the mortgagor in any place; and
(b) if the debt due and owing by the creditor to the mortgagor is
payable in a currency other than that in which the debt due and
owing by the mortgagor to the creditor is payable, convert the
creditors debt into the currency in which the mortgagor's debt is
payable by applying an exchange rate determined by the creditor.
15.2 Creditor's determination
(a) If any matter related to this document is to be resolved by the
determination or opinion of the creditor or an attorney or
receiver-.
(i) the determination or opinion of the creditor, attorney or
receiver will be binding upon the mortgagor if it is
reasonable;
(ii) the creditor, attorney or receiver is not obliged to give
the reasons for a determination or opinion; and
(iii)the mortgagor will have the -onus of proving that a
determination or opinion of the creditor, attorney or
receiver is unreasonable.
(b) A determination or an opinion of an authorized representative of
the creditor, which is given to the mortgagor or otherwise
expressed or acted upon by the creditor as being a determination
or an opinion of the creditor will be deemed to be a
determination or opinion of the creditor.
15.3 Rights cumulative The rights of the creditor in respect of this
document are cumulative and in addition to any other rights of the
creditor.
15.4 Variation No variation or waiver of, or any consent to any departure
by a party from, a provision of this document is effective unless it
is confirmed in writing signed by the creditor and then that
variation, waiver or consent is effective only in circumstances for
which it may be made or given.
15.5 Liability of parties If any party to this document consists of more
than one person then the liability of those persons under this
document is a joint liability of all those persons and a separate
liability of each of them.
15.6 Severance If any provision of this document is unenforceable in
accordance with its terms., other provisions which are self-sustaining
and capable of separate enforcement with regard to the unenforceable
provision, are and continue to be, enforceable in accordance with
their terms.
15.7 Governing law and jurisdiction This document is governed by, and is to
be construed in accordance with, the laws of Australia and the parties
submit to the non-exclusive jurisdiction of the courts of Australia
and any court hearing appeals from those courts.
16. NOTICE
16.1 General Any notice, demand, certification or other communication under
this document shall be given in writing and in the English language
and may be given by an authorized representative of the sender.
16.2 Method of giving notices A communication required or permitted to be
given by any party to another under this document must be in writing
and is treated as being duly given if it is:
(a) left at that party's address;
(b) sent by pre-paid mail to that party's address;
(c) transmitted by telex to that party's address; or
(d) transmitted by facsimile to that party's address.
16.3 Time of receipt A communication given to a party in accordance with
this Clause 16 is treated as having been duly given and received:
(a) when delivered (in the case of it being left at that party's
address);
(b) on the third business day after posting (in the case of it being
sent by pre-paid mail;
(c) on the business day after transmission (in the case of it being
given by facsimile and sent to the facsimile receiver number of
that party and no intimation having been received that the notice
had not been received, whether that intimation comes from that
party or from the operation of facsimile machinery or otherwise).
16.4 Address of parties For the purposes of Clause 16, the address of a
party is the address set out below or another address which that party
may from time to time notify each other party:
The Mortgagor: TD INTERNATIONAL SA
Address: 00 Xxx Xxxxxxxx, Xxxxxxxxx 000000
Facsimile:
Attention: Xxxxx Xxxxx
The Creditor: XXXXXX EXPLORATION PTY LTD
Address: 000 Xxxxxxxxx Xxxx, Xxxxxxxx XX 0000
Facsimile:
Attention: Xxxx Xxxxxx
IN WITNESS WHEREOF, the parties have duly executed this DEED by their authorized
representatives respectively, as of the day and year first written
TD INTERNATIONAL XX XXXXXX EXPLORATION PTY LTD
By:/s/ X.X. Xxxxx By:/s/ X.X. Xxxxxx
Name: X.X. Xxxxx Name: X.X. Xxxxxx
Title: Director Title: Director
Date: 23/10/98 Date: 14 October 1998
