EXHIBIT 3
MORTGAGE OF SHARES made 23 September 1998
BETWEEN:
(1) WOODCOMBE LIMITED (Company Number 080002C) of Xxxxxx Xxxxx, 00/00 Xxxxxxxx
Xxxx, Xxxxxxx, Xxxx xx Xxx (the "MORTGAGOR"); and
(2) AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED A.C.N. 005 357 522 a
company incorporated in Victoria, Australia of Xxxxx 00, 000 Xxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxx (the "MORTGAGEE").
RECITALS:
A. At the request of the Mortgagor, the Mortgagee has agreed to enter into the
Residual Value Put Option Agreement in favour of the Owner.
B. The Mortgagor considers that by providing this Mortgage there will be a
commercial benefit flowing to the Mortgagor.
THE PARTIES AGREE AND DECLARE AS FOLLOWS:
1. INTERPRETATION
1.1 DEFINITIONS
In this Mortgage, including the recitals, unless the context otherwise
requires:
"ARTICLES OF ASSOCIATION" means the constituent documents of the Company;
"ATTORNEY" means any attorney appointed under this Mortgage;
"AUTHORISATION" means any approval, authorisation, consent, exemption,
filing, licence, notarisation, registration or waiver, however described,
and any renewal of or variation to any of them;
"AUTHORISED REPRESENTATIVE" means:
(a) in respect of the Mortgagee:
(i) any company secretary or director of the Mortgagee or any
officer of the Mortgagee whose title or office includes the word
"manager" or "director" (or any cognate of either of those
words);
(ii) any person acting with any such title or in any such office; or
(iii) any person nominated by or on behalf of the Mortgagee as an
Authorised Representative by notice to the Mortgagor; and
(b) in respect of the Mortgagor, any person nominated by or an behalf of
the Mortgagor as an Authorised Representative by notice to the
Mortgagee,
the notice being accompanied by and certifying the correctness of a
copy of the signature of any person so appointed;
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which banks
are open for general banking business, and the Mortgagee is open for
business, in Melbourne, Australia;
"CERTIFICATE" means the certificate and any other document of title to or
otherwise evidencing title to any Shares;
"COMPANY" means Cover-All Technologies Inc. a company incorporated in the
State of Delaware, United States of America;
"CONTROLLER" means, in relation to an entity's property:
(a) a receiver or receiver and manager of that property; or
(b) anyone else who (whether or not as agent for that entity) is in
possession, or has control of that property for the purposes of
enforcing a Security Interest;
"DEBTOR" means Makator Pty Ltd A.C.N. 083 530 232;
"DEPOSITED SHARES" means Shares, for which the Certificates and Share
Transfer are, at any time, deposited by the Mortgagor with the Mortgagee
under clause 2.4;
"EVENT OF DEFAULT" means any of the events described in clause 7.1;
"FINANCIAL INDEBTEDNESS" of a person means any obligation of that person,
whether present or future, actual or contingent, to pay or deliver any
money, currency or commodity, under or in respect of any financial
accommodation or arrangement including, without limitation, under or in
respect of any:
(a) moneys borrowed or raised by that person;
(b) Guarantee;
(c) bond, debenture, note, certificate, redeemable or repurchasable share
or stock, xxxx of exchange or any similar instrument (whether or not
transferable or negotiable);
(d) put option or buy back, or discounting arrangement in relation to any
property;
(e) lease, licence or other arrangement in respect of any property (real
or personal tangible or intangible) entered into primarily for the
purpose of raising finance or of financing the acquisition of the
property leased, licensed or subject to the relevant arrangement
(other than any lease,
licence or arrangement which may be accounted for as an operating
lease under any applicable approved accounting standard in Australia);
(f) hire purchase or deferred payment obligation for any property acquired
or service employed;
(g) liability to meet calls in respect of the unpaid amount of any shares;
(h) interest or currency swap or hedge arrangement, financial option,
futures contract or analogous transaction; or
(i) arrangement which achieves the same commercial effect as any of the
above;
"GOVERNMENT AGENCY" means a government or government department, a
governmental semi-governmental or judicial person or a person (whether
autonomous or not) charged with the administration of any applicable law;
"GUARANTEE" means a guarantee, indemnity, letter of credit, performance
bond, acceptance or endorsement, or legally enforceable undertaking or
obligation:
(a) to pay or to provide funds (including by the purchase of any property)
in, or to enable payment or discharge of;
(b) to indemnify against the consequences of default in the payment of; or
(c) otherwise to be responsible for,
any obligation (whether or not it involves the payment of money) or
indebtedness, or otherwise to be responsible for the solvency or financial
condition, of any other person;
"GUARANTOR" mean any person giving a Guarantee to the Mortgagee of the
Mortgagor's or the Debtor's obligations in respect of the Secured Moneys;
"MATERIAL ADVERSE EFFECT" means, in respect of a person, a material adverse
effect on:
(a) its business, assets or financial condition; or
(b) its ability to perform its obligations under this Mortgage,
and, in respect of the Mortgaged Property, a material adverse effect on any
part of the Mortgaged Property;
"MORTGAGE" means as the context requires this document or the security
constituted by this document;
"MORTGAGED PROPERTY" means all of the right, title and interest, both
present and future, in, to, under or derived from:
(c) the Present Shares;
(d) the Deposited Shares; and
(e) the New Rights;
"NEW RIGHTS" means any present or future right of the Mortgagor:
(a) to or in any money, dividend, interest, offer, bonus, option, Share,
debenture, debenture stock, bond, note or any security;
(b) resulting from any substitution, conversion, redemption, forfeiture,
cancellation, reclassification, consolidation or subdivision; or
(c) resulting from a reduction of capital, liquidation or scheme of
arrangement,
in connection with the Mortgaged Property;
"OWNER" means ANZ Leasing (Vic) Pty Ltd A.C.N. 006 362 474;
"POTENTIAL EVENT OF DEFAULT" means any event or circumstance which, with
the passage of time or the giving of notice or both, would become an Event
of Default;
"PRESENT SHARES" means the Shares in the Company specified in schedule 1;
"RECEIVER" means any receiver or receiver and manager appointed under this
Mortgage;
"RESIDUAL VALUE PUT OPTION AGREEMENT" means the Residual Value Put Option
Agreement to be entered into between the Mortgagee and the Owner;
"SECURED MONEYS" means all amounts which are payable, owing but not
payable, or contingently owing by the Debtor to the Mortgagee under the
Shortfall Indemnity or by the Mortgagor to the Mortgagee under this
Mortgage;
"SECURITY INTEREST" means:
(a) a mortgage, pledge, lien, charge, assignment, hypothecation, secured
interest, title retention arrangement, preferential right, trust
arrangement or other arrangement (including, without limitation, any
set-off or "flawed-asset" arrangement) having the same or equivalent
commercial effect as a grant of security; or
(b) an agreement to create or give any arrangement referred to in
paragraph (a) of this definition;
"SHARE TRANSFER" means in respect of a Share an executed document of
transfer sufficient to transfer all of the legal and beneficial ownership
of that Share to the Mortgagee or its nominee;
"SHARE" means a share, stock or unit in the capital of a body corporate;
"SHORTFALL INDEMNITY" means the Shortfall Indemnity to be entered into
between the Debtor and the Mortgagee; and
"TAX" means a present or future tax, levy, impost, deduction, charge, duty,
compulsory loan or withholding (together with any related interest,
penalty, fine and expense in connection with any of them) levied or imposed
by any Government Agency, other than any imposed on overall net income.
1.2 GENERAL
In this Mortgage, including the recitals, unless the context otherwise
requires:
(a) a reference to any legislation or legislative provision includes any
statutory modification or re-enactment of, or any legislative
provision substituted for, and any subordinate legislation under, that
legislation or legislative provision;
(b) the singular includes the plural and vice versa;
(c) a reference to an individual or person includes a corporation, firm,
partnership, joint venture, association, authority, trust, state or
government and vice versa;
(d) a referral to any gender includes all genders;
(e) a reference to a recital, clause, schedule or annexure is to a
recital, clause, schedule. or annexure of or to this Mortgage;
(f) a schedule or annexure forms part of this Mortgage;
(g) a reference to any agreement or document is to that agreement or
document (and, where applicable, any of its provisions) as amended,
novated, restated or replaced from time to time;
(h) a reference to any party to the Mortgage or any other document or
includes that party's executors, administrators, substitutes,
permitted assigns;
(i) where an expression is defined, another part of speech or grammatical
form of that expression has a corresponding meaning;
(j) a reference to "BANKRUPTCY" or "WINDING UP" includes bankruptcy,
winding up, liquidation, dissolution, becoming an insolvent under
administration (as defined in section 9 of the Corporations Law) and
the occurrence of anything analogous or having a substantially similar
effect to any of those conditions or matters under the law of any
applicable jurisdiction, and to the procedures, circumstances and
events which constitute any of those conditions or matters; and
(k) a reference to a matter being "TO THE KNOWLEDGE" of a person means
that the matter is to the best of the knowledge and belief of that
person after
making reasonable enquiries in the circumstances.
1.3 HEADINGS
In this Mortgage, including the recitals, headings are for convenience of
reference only and do not affect interpretation.
1.4 BENEFICIAL OWNER
By the use in this Mortgage of the words "AS BENEFICIAL OWNER", the
covenants implied by the relevant legislation under the governing law in
respect of a conveyance by a person expressed to convey by way of mortgage
as beneficial owner are incorporated in and form part of this Mortgage
insofar as they are applicable and are not inconsistent with the express
covenants of this Mortgage.
2. SECURITY
2.1 MORTGAGE
To secure the due and punctual payment of the Secured Moneys, the
Mortgagor, as beneficial owner, hereby mortgages, pledges and assigns to
the Mortgagee, and grants to the Mortgagee a security interest in, all of
its right, title and interest in and to the following whether now owned or
hereafter acquired:
(a) the Present Shares, on the date of this Mortgage;
(b) the New Rights, as the Mortgagor acquires them; and
(c) the Deposited Shares, when the Certificates and Share Transfers in
respect of those Shares are deposited in accordance with clause 2.3,
by way of equitable mortgage.
2.2 CERTIFICATES AND SHARE TRANSFERS FOR PRESENT SHARES
The Mortgagor shall deposit with the Mortgagee or its nominee, upon
execution of this Mortgage:
(a) all Certificates in respect of the Present Shares; and
(b) a Share Transfer or Share Transfers (in the form set out in schedule 2
and in number satisfactory to the Mortgagee) in respect of the Present
Shares, with the name of the transferee and the date left blank.
2.3 DEPOSITED SHARES
The Mortgagor may at any time and in respect of any Shares deposit with the
Mortgagee the Certificates and Share Transfers in respect of those Shares.
2.4 DOCUMENTS RELATING TO NEW RIGHTS
The Mortgagor shall deposit with the Mortgagee or its nominee all
certificates, transfers and other agreements or documents evidencing title
to New Rights and sufficient to transfer all of the right, title and
interest of the Mortgagor in the New Rights to the Mortgagee or its
nominee.
2.5 DIVIDENDS AND VOTES
Until an Event of Default or a Potential Event of Default occurs, the
Mortgagor may:
(a) exercise all rights (including voting rights) in connection with the
mortgaged Property; and
(b) receive and retain all New Rights.
2.6 MORTGAGEE ENTITLED TO EXERCISE RIGHTS UPON DEFAULT
If an Event of Default or a Potential Event of Default occurs:
(a) the Mortgagor's rights under clause 2.5 immediately cease;
(b) the Mortgagee may exercise or refrain from exercising, in its sole
discretion, any rights in connection with the Mortgaged Property; and
(c) the Mortgagee may receive and retain all New Rights.
2.7 REGISTRATION UPON DEFAULT
If:
(a) an Event of Default or a Potential Event of Default occurs; and
(b) at any time afterwards, the Mortgagee gives notice to the Mortgagor
requiring it to do so,
the Mortgagor shall do all things necessary to ensure that the Mortgaged
Property is registered in the Mortgagee's name in accordance with any
directions contained in that notice including, without limitation,
obtaining any guarantee of the signature on the Share Transfer that may be
required by the Company.
3. REPRESENTATIONS AND WARRANTIES
3.1 GENERAL REPRESENTATIONS AND WARRANTIES
The Mortgagor represents and warrants to the Mortgagee that:
(a) (STATUS) it is a company limited by shares incorporated, or taken to
be incorporated, and existing under the laws of the Isle of Man and is
not in liquidation, provisional liquidation or receivership, or under
administration;
(b) (POWER) it has full legal capacity and power:
(i) to own the Mortgaged Property and carry on its business as it is
now being conducted; and
(ii) to enter into, and exercise its rights and perform its
obligations under, this Mortgage;
(c) (AUTHORISATION) all conditions and things required by applicable law
to be fulfilled or done (including the obtaining of any necessary
Authorisations) in order:
(i) to enable it lawfully to enter into, and exercise its rights and
perform its obligations under, this Mortgage;
(ii) to ensure that its payment obligations under this Mortgage rank
and will continue to rank at all times in accordance with
paragraph (e) below; and
(iii) to make this Mortgage admissible in evidence in the courts
specified in clause 22.2,
have been fulfilled or done;
(d) (OBLIGATIONS BINDING) this Mortgage constitutes its valid and legally
binding obligations, enforceable against it in accordance with its
terms except to the extent limited by equitable principles and laws
affecting creditors' rights generally;
(e) (RANKING OF OBLIGATIONS) its payment obligations under this Mortgage
rank and will continue to rank at all times in priority to its present
and future unsecured and unsubordinated payment obligations
(including, without limitation, contingent obligations), other than
those which are mandatorily preferred by law;
(f) (NO CONTRAVENTION) neither its execution of, nor its exercise of its
rights or performance of its obligations under, this Mortgage does or
will:
(i) contravene any applicable law to which it or any of its property
is subject, or any order of any Government Agency binding on it
or any of its property;
(ii) contravene any Authorisation or require that any Authorisation
be
obtained;
(iii) Contravene any undertaking or instrument binding on it or any of
its property;
(iv) contravene any provision of its constituent documents;
(v) require it to make any payment or delivery in respect of any
Financial Indebtedness before the scheduled date for that
payment or delivery; or
(vi) cause any limitation on its power to incur Financial
Indebtedness to be exceeded;
(g) (NO LITIGATION) no litigation, arbitration, mediation, conciliation or
administrative proceedings are taking place, pending or, to the
knowledge of any of its officers, threatened against it or any of its
property which, if adversely determined, could have a Material Adverse
Effect on it or the Mortgaged Property;
(h) (NO ENFORCEMENT OF SECURITY INTERESTS) no Controller is currently
appointed in relation to any of its property;
(i) (NO DEFAULTS) no Event of Default or Potential Event of Default has
occurred and is continuing; and
(m) (TRUST) in giving this Mortgage, it is not acting as trustee of any
bust or settlement.
3.2 REPRESENTATIONS AND WARRANTIES ABOUT MORTGAGED PROPERTY
The Mortgagor represents and warrants to the Mortgagee that:
(a) (TITLE TO MORTGAGED PROPERTY) at the time each part of the Mortgaged
Property is mortgaged in accordance with clause 2.1, it has good right
and title to, and full power to mortgage, that part in the manner
provided in this Mortgage, and that part is free from all Security
interests;
(b) (SHARES FULLY PAID) the Shares included in the Mortgaged Property are
fully paid up; and
(c) (NOT SUBJECT TO ESCROW) the Mortgaged Property is not subject to any
escrow or other conditions imposed by the Uniform Commercial Code
of the applicable states of the United States of America, the General
Corporation Law of the State of Delaware, the Articles of Association
or under the rules of any stock exchange.
3.3 REPETITION OF REPRESENTATIONS AND WARRANTIES
(a) All representations and warranties In this clause are taken by the
Mortgagor on the date of each advance or accommodation made to the
Mortgagor or the Debtor with reference to the facts and circumstances
-subsisting on that date.
(b) The representations and warranties contained in clause 3.2 are taken
to be repeated by the Mortgagor on each date on which the Mortgagor
acquires Mortgaged Property or a deposit is made under clause 2.4.
3.4 RELIANCE ON REPRESENTATIONS AND WARRANTIES
The Mortgagor acknowledges that the mortgagee has taken this Mortgage and
has agreed or will agree to provide advances and accommodation to the
Mortgagor or the Debtor in reliance on the representations and warranties
in this clause.
4. MORTGAGOR'S UNDERTAKINGS.
4.1 GENERAL UNDERTAKINGS
The Mortgagor shall:
(a) (OBLIGATION TO PAY) punctually pay the Secured Moneys as and when they
become due and payable in accordance with the terms of the Shortfall
Indemnity or of any other agreement in writing between the Mortgagor
or the Debtor and the Mortgagee or in the absence of any such
agreement or after default under any such agreement on demand by the
Mortgagee;
(b) (INTEREST) on demand by the Mortgagee, pay interest on any part of the
Secured Moneys:
(i) which has become due and payable and remains unpaid, including
interest payable under this clause (without allowing for any
credit balance in any account of the Mortgagor or the Debtor
with the Mortgagee); and
(ii) on which neither the Mortgagor nor the Debtor is already
required to pay interest by the terms of any agreement in
writing between the Mortgagee and the Mortgagor or the Debtor
relating to those moneys,
such interest to be calculated at daily rests at whatever rate or
rates the Mortgagee may from time to time determine, without prior or
other notice to the Mortgagor or the Debtor and to accrue both before
and (as a separate and independent obligation) after judgment;
(c) (STATUTORY REQUIREMENTS) punctually comply with all statutes in force
now or in the future and all ordinances, regulations and by-laws
thereunder and
all requirements and orders of any authority statutory
or otherwise, in all cases in which non-compliance would or might
impose some charge or liability or disability upon the Mortgaged
Property or any part of it or prejudicially affect the rights of the
Mortgagee under this Mortgage;
(d) (REGISTRATION) forthwith at its own cost and expense:
(i) lodge, or ensure that there are lodged, all certificates and
other materials necessary to ensure that this Mortgage is
registered (other than provisionally) pursuant to section 79
of the Companies Xxx 0000 of the Isle of Man; and
(ii) cause this Mortgage to be registered or recorded in such other
places as the Mortgagee may from time to time notify the
Mortgagor if the Mortgagee is reasonably satisfied that such
registration or recording is necessary or desirable to perfect
this Mortgage or to protect the rights of the Mortgagee under
this Mortgage;
(e) (COMPANY DOCUMENTS) provide the Mortgagee with copies of all reports,
balance sheets, accounts, notices, circulars and other documents which
the Company, or any other body corporate which has issued any of the
Deposited Shares, provides to its shareholders;
(f) (ACCOUNTS) at the same time as any document, notice, balance sheet or
accounts are required by the laws of the Isle of Man or any other
legislation, the rules of any stock exchange or the constitution of
the Mortgagor to be given to the members of the Mortgagor or any stock
exchange, forward to the Mortgagee a copy of such item; and
(g) (NO ADMINISTRATOR) not appoint an administrator without prior notice
to the Mortgagee.
4.2 UNDERTAKINGS RELATING TO MORTGAGED PROPERTY
The Mortgagor shall:
(a) (OUTGOINGS) punctually pay all outgoings (including Taxes) that are or
become due and payable on or in respect of the Mortgaged Property;
(b) (PRESERVE AND PROTECT SECURITY) promptly do everything necessary and
everything reasonably required by the Mortgagee to:
(i) preserve and protect the value of the Mortgaged Property; and
(ii) protect and enforce its title and the Mortgagee's title as
mortgagee to the Mortgaged Property;
(c) (LEGAL PROCEEDINGS) at the Mortgagee's request take or defend legal
proceedings for the protection or recovery of the Mortgaged Property
or any rights of the Mortgagor under or in respect of any of it;
(d) (REGISTER) not request or consent to the removal of:
(i) any of the Present Shares from the register on which they are
recorded or registered as at the date of this Mortgage; or
(ii) any of the Deposited Shares from the register on which they are
recorded or registered at the date on which that Share is
mortgaged in accordance with clause 2.1,
without the prior consent of the Mortgagee;
(e) (NEW RIGHTS) provide to the Mortgagee immediately after becoming aware
of the New Rights, particulars of all New Rights and all documentary
or other evidence of New Rights;
(f) (TAKE UP) at the Mortgagee's request take up New Rights if, in the
Mortgagee's opinion, failure to do so could mean the Mortgaged
Property or this Mortgage may become materially lessened in value or
prejudicially affected;
5. RESTRICTIONS ON DEALING WITH MORTGAGED PROPERTY
The Mortgagor shall not:
(a) create or purport or attempt to create or suffer to subsist any
Security Interest in respect of the Mortgaged Property ranking in
priority to, equally with or after this Mortgage; or
(b) sell or otherwise dispose of, create or allow the creation of any
interest in, or part with possession of, any of the Mortgaged
Property,
without the prior consent of the Mortgagee.
6. MORTGAGEES RIGHT TO MAKE GOOD A DEFAULT
If the Mortgagor makes any default in duly performing any covenant or
agreement on the part of the Mortgagor contained or implied in this
Mortgage, the Mortgagee may in its discretion and without prejudice to its
other rights under this Mortgage do all things and pay all moneys necessary
or expedient in the opinion of the Mortgagee to make good or in attempting
to make good such default to the satisfaction of the Mortgagee.
7. ENFORCEMENT
7.1 EVENTS OF DEFAULT
The Secured Moneys shall at the option of the Mortgagee and notwithstanding
any delay or previous waiver of the right to exercise such option
immediately become payable without the necessity for any demand or notice,
and this Mortgage shall at
the option of the Mortgagee become enforceable (whether or not the Secured
Moneys have become payable in this manner) in each of the following events:
(a) (NON-PAYMENT) if any part of the Secured Moneys is not paid when due
and payable;
(b) (OTHER OBLIGATIONS) if the Mortgagor fails to perform any provision of
this Mortgage requiring performance by it (other than a failure
referred to elsewhere in this clause) and that failure is incapable of
remedy or, if capable of remedy, continues for 7 Business Days after
the Mortgagor receives a notice from the Mortgagee requiring that the
failure be remedied;
(c) (MISREPRESENTATION) if any representation, warranty or statement made
or repeated in or in connection with this Mortgage is untrue or
misleading (whether by omission or otherwise) in any material respect
when so made or repeated;
(d) (INVOLUNTARY WINDING UP) if any application is made for the winding up
of the Mortgagor, the Debtor or any Guarantor and the application is
not dismissed or withdrawn within 21 Business Days, or an order is
made for the winding up of the Mortgagor, the Debtor or any Guarantor,
except for the purpose of a reconstruction, amalgamation, merger or
consolidation on terms approved by the Mortgagee before that
application or order is made where the reconstruction, amalgamation,
merger or consolidation is implemented in accordance with the terms of
that approval;
(e) (VOLUNTARY WINDING UP) if the Mortgagor, the Debtor or any Guarantor
passes a resolution for its winding up, except for the purpose of a
reconstruction, amalgamation, merger or consolidation on terms
approved by the Mortgagee before that resolution is passed where the
reconstruction, amalgamation, merger or consolidation is implemented
in accordance with the terms of that approval;
(f) (RECEIVER OR LIQUIDATOR) if a receiver, receiver and manager,
provisional liquidator, trustee for creditors or in bankruptcy or
analogous person is appointed to, or the holder of a Security Interest
takes (or appoints an agent or Controller to take) possession of, any
property of the Mortgagor, the Debtor or any Guarantor;
(g) (ADMINISTRATOR) if the Mortgagor or any other person appoints an
administrator to the Mortgagor, the Debtor or any Guarantor, or takes
any step to do so;
(h) (INSOLVENCY) if the Mortgagor, the Debtor or any Guarantor:
(i) suspends payment of its debts;
(ii) ceases or threatens to cease to carry on all or a material part
of its business; or
(iii) is or states that it is, unable to pay its debts;
(i) (COMPROMISE OR ARRANGEMENTS) if the Mortgagor, the Debtor or any
Guarantor takes any step for the purpose of entering into a compromise
or arrangement with any of its members, or creditors, generally or any
class of them;
(j) (DISTRESS OR OTHER EXECUTION) if the process of any court or authority
is invoked against the Mortgagor, the Debtor or any Guarantor or any
of the Mortgagor's, the Debtor's or Guarantor's property to enforce
any judgment or order for the payment of money or the recovery of
property and the Mortgagor, the Debtor or Guarantor is unable, within
five Business Days, to satisfy the Mortgagee that there is no
substantial basis for the judgment or order in respect of which the
process was invoked;
(k) (MAINTENANCE OF CAPITAL) if the Mortgagor, the Debtor or any Guarantor
passes a resolution:
(i) to permit the giving of financial assistance, whether directly
or indirectly for the purpose of, or in connection with, an
acquisition or proposed acquisition by a person of shares or of
any right or interest in shares in the Mortgagor, Debtor or
Guarantor or any holding company of the Mortgagor, Debtor or
Guarantor;
(ii) for the reduction of its share capital;
(iii) to limit its ability to make calls on its uncalled share
capital; or
(iv) approving the purchase by the Mortgagor, Debtor or Guarantor of
any shares in itself other than redeemable preference shares;
(l) (MATERIAL ADVERSE EFFECT) if a change occurs which could, or could in
the opinion of the Mortgagee, have a Material Adverse Effect on the
Mortgagor, the Debtor or my Guarantor or the Mortgaged Property;
(m) (SECURITY INTERESTS) if the Mortgagor in contravention of clause 5
creates or permits to subsist any Security Interest relating to or
affecting the Mortgaged Property or any part of it;
(n) (COMPULSORY ACQUISITION) if all or a material part of the property of
the Mortgagor, the Debtor or any Guarantor is compulsorily acquired by
any
Government Agency or the Mortgagor, the Debtor or any Guarantor sells
or divests itself of all or a material part of its property pursuant
to a binding order from a Government Agency, and the Mortgagor, the
Debtor, or any Guarantor does not receive compensation for the
acquisition, sale or disposal which is acceptable to the Mortgagee;
(o) (INABILITY TO PERFORM) if the Mortgagor ceases for any reason to be
able lawfully to carry out all the transactions which this Mortgage
contemplates may be carried out by it;
(p) (PROVISIONS VOID) if all or any material provision of this Mortgage:
(i) does not have effect or ceases to have effect in accordance with
its terms; or
(ii) is or becomes void, voidable, illegal, invalid or unenforceable
other than by reason of equitable principles or laws affecting
creditors' rights generally,
or the Mortgagor claims any of the matters referred to in
subparagraphs (i) and (ii) above to be the case; or
(q) (DE-LISTING) any part of Mortgaged Property which has an official
quotation on any stock exchange ceases to have an official quotation.
7.2 ENFORCEMENT NOTWITHSTANDING PRIOR PAYMENT
This Mortgage may be enforced notwithstanding acceptance of any payment of
interest or any other payment after any default and notwithstanding any
previous or other default and without the necessity of any notice to or of
any consent or concurrence on the part of the Mortgagor or any other
person.
8. POWERS OF MORTGAGEE ON ENFORCEMENT
8.1 POWERS
At any time after this Mortgage becomes enforceable and from time to time
thereafter the Mortgagee will have full power, without any consent on the
part of the Mortgagor, to do all or any of the following:
(a) (TAKE POSSESSION) to take possession of, collect and get in the
Certificates, the Share Transfers and the whole or any part of the
Mortgaged Property and for such purpose to take proceedings in the
name of the Mortgagor or otherwise;
(b) (REGISTRATION) to do everything necessary to obtain registration of
the Mortgaged Property in the Mortgagee's name or in the name of any
nominee of the Mortgagee and to enable the Mortgagee or any nominee of
the Mortgagee to receive any New Rights;
(c) (EXERCISE RIGHTS) to exercise all or any of the rights, powers,
authorities and remedies conferred on the Mortgagee by this Mortgage
and exercisable by the Mortgagee under or by virtue of this Mortgage;
(d) (SELL) to sell or concur in selling, exchange or otherwise dispose of
absolutely or conditionally all or any part of the Mortgaged Property
either by public auction or private treaty or by tender for cash or on
credit and either in one lot or in parcels and either with or without
special conditions or stipulations as to title or time or mode of
payment of purchase money or otherwise and with power to allow the
whole or any part of the purchase money to remain outstanding on the
security of a mortgage over the property sold or over any other
property or to remain owing without any security and upon other terms
and conditions as the Mortgagee may consider expedient without being
responsible for any loss;
(e) (TRANSFER ON SALE) to execute Share Transfers and other transfers and
assignments of all or any of the Mortgaged Property in the name and on
behalf of the Mortgagor or otherwise, and to do all other acts and
things for completing any sale under the preceding paragraph which the
Mortgagee thinks necessary;
(f) (GIVE RECEIPTS) to give effectual receipts for all moneys and other
assets which may come into the hands of the Mortgagee in exercise of
any power conferred by this Mortgage, which receipts will exonerate
any person paying or handing over such moneys or other acts from all
liability to see to their application or to enquire whether the
Secured Moneys have become payable or otherwise as to the propriety or
regularity of the powers of the Mortgagee under this Mortgage;
(g) (RIGHTS OF A SHARE OWNER) to exercise all rights, actions and remedies
available to any owner or holder, whether beneficial or otherwise, of
any Shares included in the Mortgaged Property including, without
limitation, rights available to an owner of Shares under the laws of
the Isle of Man and the federal law and law of each state of the
United States of America or any statute, or under the rules of any
stock exchange;
(h) (NEW RIGHTS) to receive all New Rights;
(i) (ALL OTHER ACTS) to do or cause to be done all such other acts and
things without limitation as the Mortgagee thinks expedient in the
interests of the Mortgagee and to do anything incidental to the
exercise of any other power; and
(j) (DELEGATE) to delegate to any person any of the powers conferred upon
the Mortgagee by this subclause.
8.2 COMPLETION OF INSTRUMENTS
Upon this Mortgage becoming enforceable, the Mortgagee or any of its
Authorised
Representatives may complete in favour of the Mortgagee or any appointee
of the Mortgagee or any purchaser, lessee or mortgagee under any power,
all Share Transfers and other transfers or instruments of whatever
nature executed by or on behalf of the Mortgagor in blank and deposited
with the Mortgagee as collateral security to this Mortgage.
9. APPOINTMENT OF RECEIVER
9.1 APPOINTMENT
At any time after this Mortgage becomes enforceable and from time to time
thereafter and whether the Mortgagee has entered into possession of all or
any of the Mortgaged Property or not, the Mortgagee or any Authorised
Representative of the Mortgagee may:
(a) appoint any person or any two or more persons jointly and severally to
be a receiver or receiver and manager (or an additional receiver or
receiver and manager) of all or any of the Mortgaged Property;
(b) remove any such Receiver and in case of the removal retirement or
death of any such Receiver appoint another as a replacement; and
(c) fix the remuneration of any such Receiver.
Subject to clause 9.2, every Receiver appointed in exercise of the power
conferred by this subclause, unless and until the Mortgagee by notice to
the Mortgagor and to the Receiver requires that such Receiver acts as agent
of the Mortgagee, will be the agent of the Mortgagor and the Mortgagor
alone win be liable for his acts and defaults and remuneration.
9.2 RECEIVER OTHER THAN AS AGENT OF MORTGAGOR
The power to appoint a Receiver under this clause 9 may be exercised
notwithstanding that at the time when this Mortgage becomes enforceable or
at the time when such an appointment is made, an order may have been made
or a resolution may have been passed for the winding up of the Mortgagor
and notwithstanding that a Receiver appointed in those circumstances may
not, or may not in some respects, act as the agent of the Mortgagor.
9.3 POWERS OF RECEIVER
The Receiver will have full power without any consent on the part of the
Mortgagor to do all or any of the following:
(a) perform all or any one or more of the acts and activities described in
clauses 8.1 and 8.2;
(b) perform all or any one or more of the acts and activities within the
authority
of the attorney of the Mortgagor appointed pursuant to clause 14; and
(c) delegate to any person, for such time and upon such terms as the
Mortgagee may approve, any of the powers conferred on him under this
Mortgage.
10. PROTECTION OF THE MORTGAGEE AND OTHER PERSONS
10.1 PROTECTION OF MORTGAGEE AND RECEIVER
The Mortgagee is not obliged to give any notice of this Mortgage to any
debtor or member of the Mortgagor or to any other person or to enforce
payment of any moneys payable to the Mortgagor, or to take any steps or
proceedings for any such purpose, but the Mortgagee may do so if it thinks
fit. Neither the Mortgagee nor any of its Authorised Representatives nor
any Receiver will be answerable for any omission or delay in that behalf or
for any involuntary losses or irregularities which may happen in or about
the exercise or nonexercise of any powers, rights or remedies conferred on
the Mortgagee or Receiver by this Mortgage.
10.2 PROTECTION OF THIRD PARTIES
Upon any sale, disposal or dealing purporting to be made in exercise of the
powers contained in this Mortgage, no purchaser or other party to any
disposal or dealing is:
(a) bound to enquire whether any default has been made or as to the due
appointment of any Receiver or otherwise as to the propriety or
regularity of any such sale, disposal or dealing; or
(b) affected by notice that any such sale, disposal or dealing is
unnecessary or improper.
Notwithstanding any irregularity or impropriety in any such sale, disposal
or dealing it is to be treated, for the protection of the purchaser or
other party to such disposal or dealing, as being authorised by such powers
and will be valid and effectual accordingly.
10.3 CONFLICT OF INTERESTS
The Mortgagee, each Authorised Representative of the Mortgagee or other
Person appointed by the Mortgagee under this Mortgage, each administrator
of the Mortgagor appointed by the Mortgagee, each Attorney and each
Receiver may exercise the powers conferred by this Mortgage or by law even
though that person may have a conflict of interests in exercising those
powers or a direct or personal interest in the means or result of that
exercise of those powers.
11. APPLICATION OF MONEYS
11.1 MANNER AND ORDER
All moneys received by any Receiver or by the Mortgagee under or by virtue
of this Mortgage may be applied in the following manner and order.
(a) (COSTS) first in payment of all costs, charges and expenses of the
Mortgagee and any Receiver incurred in or incidental to the exercise
or performance or attempted exercise or performance of any power or
otherwise in relation to this Mortgage;
(b) (OUTGOINGS) secondly in payment of such other outgoings as the
Mortgagee or the Receiver shall think fit to pay;
(c) (RECEIVER) thirdly in payment to the Receiver of any remuneration
whether by way of commission or otherwise;
(d) (INDEMNITIES) fourthly in payment to the Mortgagee and the Receiver of
all amounts necessary to give effect to any indemnity contained in
this Mortgage; and
(e) (SECURED MONEYS) fifthly in payment to the Mortgagee of the Secured
Moneys.
and the surplus (if any) will belong to the Mortgagor or other persons
entitled to it but:
(f) the surplus will not carry interest; and
(g) the Receiver or the Mortgagee may pay the surplus to the credit of a
bank account in the name of the Mortgagor or other persons entitled to
it and will then be under no further liability in respect of it.
11.2 ONLY ACTUAL RECEIPTS CREDITED
In applying any moneys towards satisfaction of the Secured Moneys the
account of the Mortgagor will be credited only with so much of the money
available for the purpose as is actually received by the Mortgagee, such
credit to date from the time of such receipt.
11.3 COMPENSATION
Any compensation which may become payable in respect of the Mortgaged
Property will at the option of the Mortgagee be applicable in or towards
repayment of the Secured Moneys. The Mortgagee is empowered to make any
claim for such compensation and alone to agree, compromise and settle any
such claim and to execute any necessary assurances and releases in the name
of the Mortgagor and the Mortgagee. If any compensation comes into the
hands
of the Mortgagor before a final discharge of this Mortgage, the Mortgagor
shall forthwith pay it to the Mortgagee.
12. RECEIPTS
The receipt of the Mortgagee, or any of its Authorised Representatives for
any moneys payable to or receivable by the Mortgagee by virtue of this
Mortgage will exonerate the person paying those moneys from all liability
to enquire whether the Secured Moneys have become payable. Every such
receipt will, as to the moneys paid or expressed to be received in that
receipt, effectually discharge the person paying those moneys from its
liability to do so, and from being concerned to see to the application or
being answerable or accountable for any loss or misapplication of those
moneys.
13. POWER OF ATTORNEY
13.1 AUTHORITY
All acts and things which under all or any of the covenants and agreements
in this Mortgage contained or implied could or ought to be done by the
Mortgagor or which the Mortgagee is by virtue of this Mortgage or by
statute authorised or empowered to do may be done by any Attorney either in
the name of the Mortgagee or the Mortgagor or of such Attorney.
13.2 APPOINTMENT
For valuable consideration and as security for the performance of its
obligations under this Mortgage, the Mortgagor irrevocably appoints the
Mortgagee and each of its Authorised Representatives and as an independent
appointment appoints any Receiver severally the true and lawful attorney
of the Mortgagor for the purposes of clause 13.1 and also with full
licence, power and authority at any time at the cost of the Mortgagor;
(a) (ALL ACTS NECESSARY) to take all such steps and proceedings and to do
and execute all such acts, deeds and things as are necessary or as to
the Mortgagee or the Attorney seems expedient for securing or
perfecting this Mortgage and to execute in favour of the Mortgagee any
legal mortgages, Share Transfers, transfers, assignments and other
assurances of any part of the Mortgaged Property in accordance with
this Mortgage;
(b) (RECOVER MORTGAGED PROPERTY) in the name and on behalf of the
Mortgagor or in the name of the Mortgagee or the Attorney to ask,
demand, xxx for, recover and receive from any person and give
effectual receipts for any part of the Mortgaged Property;
(c) (RIGHTS OF A SHARE OWNER) to exercise all rights, actions and remedies
available to any owner or holder, whether beneficial or otherwise, of
any Shares included in the Mortgaged Property including, without
limitation, rights available to an owner of Shares under the laws of
the Isle of Man and the federal law and law of each state of the
United States of America or any other statute, or under the rules of
any stock exchange;
(d) (GENERAL) generally to do, perform and execute all such further and
other acts, deeds, Matters and things which become necessary or
regarded by the Mortgagee or the Attorney as necessary for more
satisfactorily securing the payment of the Secured Moneys as
effectually as the Mortgagor could or might do the same; and
(e) (APPOINT SUBSTITUTES) for all or any of the foregoing from time to
time to appoint any substitute or substitutes and substitutes at
pleasure to remove.
14. CONTINUING SECURITY AND THIRD PARTY PROVISIONS
14.1 NOTWITHSTANDING SETTLEMENT
This Mortgage is a continuing security notwithstanding any settlement of
account, intervening payment or other matter or thing whatever until a
final discharge of this Mortgage is given to the Mortgagor and will apply
to the present and future balance of the Secured Moneys.
14.2 PREFERENCE
If, after the Mortgagee applies any amount against any of the Secured
Moneys, it forms the view that it is obliged to make a payment in respect
of the amount so applied by it to any person under any law relating to
bankruptcy, winding up or the protection of creditors;
(a) the Mortgagee's rights are to be reinstated and will be the same in
respect of that amount or the relevant part of it, as if the
application, or the payment or transaction giving rise to it, had not
been made; and
(b) the Mortgagor shall immediately do anything (including the signing of
documents) required by the Mortgagee to restore to the Mortgagee any
Guarantee or Security Interest to-which it was entitled immediately
before the application or the payment or transaction giving rise to
it.
14.3 NATURE OF THIRD PARTY MORTGAGE
This Mortgage:
(a) is a principal obligation not ancillary or collateral to any other
right or obligations; and
(b) may be enforced against the Mortgagor without the Mortgagee first
being required to exhaust any remedy it may have against the Debtor or
to enforce any security it may hold with respect to the Secured
Moneys.
14.4 MORTGAGOR'S LIABILITY ABSOLUTE
The liability of the Mortgagor is absolute and is not affected by any act,
omission, matter or thing which but for this subclause might operate to
release or otherwise exonerate it from its obligations in whole or in part
including, without limitations, any one or more of the following (whether
occurring with or without the consent of any person):
(a) the grant to the Debtor, the Mortgagor or any other person of any
time, waiver or other indulgence or concession or the whole or partial
discharge or release of the Debtor, the Mortgagor or any other person;
(b) any transaction or arrangement that may take place between the
Mortgagee and the Debtor, the Mortgagor or any other person;
(c) the winding up or bankruptcy or death of, or the appointment of an
administrator to, the Debtor, the Mortgagor or any other person;
(d) the fact that the Mortgagee or any other person takes or fails to take
any other Security Interest or Guarantee;
(e) the fact that the Mortgagee or any other person exercises or refrains
from exercising its rights under any other Security Interest or
Guarantee or any of the rights, powers or remedies conferred on it by
law or by any agreement or fails to recover, by exercise of any such
rights, any moneys owing to the Mortgagee by the Debtor;
(f) the variation (including a variation which increases the Secured
Moneys), replacement, extinguishment, loss, release, discharge,
abandonment or transfer either in whole or in part of any agreement or
document relating to the Secured Moneys including any other Security
Interest or Guarantee now or in the future held by the Mortgagee from
any person;
(g) the obligations of the Debtor or of any other person under any
agreement relating to the Secured Moneys, including any other Security
Interest or Guarantee, being or becoming wholly or partially illegal,
void, voidable, unenforceable or disclaimed by a liquidator;
(h) the failure by the Mortgagee to give notice to the Mortgagor of any
default by the Debtor or any other person;
(i) any legal limitation, disability, incapacity or other circumstances
related to the Debtor, the Mortgagor or any other person;
(j) the fact that any person who was intended to be bound as a surety in
respect of the Secured Moneys does not become bound or, having done
so, ceases to be so bound;
(k) any laches, acquiescence, delay, acts, omission or mistake on the part
of or suffered by the Mortgagee or any other person in relation to
this Mortgage or any other Security Interest, Guarantee, agreement or
negotiable instrument;
(l) the Mortgagee's becoming a party to any compromise or scheme or
assignment of property by or relating to the Debtor or the Mortgagor
or the acceptance by the Mortgagee of any dividend or sum of money
under any such compromise or scheme;
(m) any judgment or rights which the Mortgagee may have or exercise
against the Debtor, the Mortgagor or any other person; or
(n) the opening of a new account by the Debtor with the Mortgagee or any
other person or the operation of that new account.
14.5 LIMITATIONS ON MORTGAGOR'S RIGHTS
Until the Secured Moneys have been discharged in full, the Mortgagor may
not:
(a) share in any security held or money received by the Mortgagee in
respect of the Secured Moneys or stand in the place of the Mortgagee
in respect of any such security or money;
(b) take any steps to enforce a right or claim against the Debtor in
respect of any money paid by the Mortgagor to the Mortgagee under this
Mortgage; or
(c) have or exercise any rights as surety in competition with the
Mortgagee.
14.6 NO MARSHALLING
The Mortgagee is not under any obligation to marshal in favour of the
Mortgagor any security now or in the future held by the Mortgagee or any
funds or assets that the Mortgagee may be entitled to receive or have a
claim upon.
14.7 WINDING UP OR BANKRUPTCY OF DEBTOR
If the Debtor is wound up or bankrupted, the Mortgagor irrevocably
authorises the Mortgagee to:
(a) prove for all Moneys which the Mortgagor has paid under this Mortgage;
and
(b) retain and carry into a suspense account and appropriate at the
discretion of the Mortgagee any dividends received and all moneys
received in respect of the Secured Moneys, until the Mortgagee has
been paid the Secured Moneys in full.
15. NO MERGER
Nothing contained in this Mortgage will merge in, extinguish, postpone,
lessen or otherwise prejudicially affect any other security now or in the
future held by the Mortgagee or any right or remedy which the Mortgagee or
any person claiming through the Mortgagee now has or in the future may have
against the Mortgagor or any other person. No other security now or in the
future held by the Mortgagee will in any way prejudicially affect the
powers and provisions contained or implied in this Mortgage.
16. LIABILITY FOR LOSS
16.1 MORTGAGEE NOT ACCOUNTABLE
The Mortgagee will not be answerable or accountable for any loss of any
kind whatever which may happen in or about the exercise or attempted
exercise of, or failure to exercise, any of the powers contained in this
Mortgage.
16.2 MORTGAGEE OR RECEIVER NOT LIABLE
Neither the Mortgagee nor any of its Authorised Representatives nor any
Receiver is liable by reason of the Mortgagee's or such Receiver's entering
into possession of the Mortgaged Property or any part of it:
(a) to account as mortgagee in possession or for anything except actual
receipts; or
(b) for any loss upon realisation or for any default or omission for which
a mortgagee in possession might be liable.
Every Receiver under this Mortgage is deemed as regards responsibility for
loss, damage or misconduct to be the agent of the Mortgagor which will be
solely responsible for the Receiver's actions and default.
17. INDEMNITY
To the maximum extent permitted by applicable law, the Mortgagee, every
Authorised Representative of the Mortgagee and any Receiver, Attorney,
agent, administrator of the Mortgagor or other person appointed under this
Mortgage, or any applicable law, by or on behalf of the Mortgagee as
mortgagee under this Mortgage, is entitled to be indemnified by the
Mortgagor, and out of the Mortgaged Property, in respect of all liabilities
and expenses incurred by it or Such person in the execution or purported
execution of any of the powers, authorities or discretion vested in it or
such person under, or under such applicable law in respect of, this
Mortgage and against all actions, proceedings, costs, claims and demands in
respect of any matter or thing done or omitted in any way relating to the
Mortgaged Property. The Mortgagee or Receiver may obtain and pay out of
any moneys in its or his hands arising from the powers in this Mortgage all
sums necessary to give
effect to this indemnity.
18. STATUTORY POWERS
18.1 MORTGAGEE'S POWERS
The powers conferred on a mortgagee by any statute are in addition to the
powers expressly conferred by this Mortgage and may be exercisable by the
Mortgagee immediately upon or at any time after any default by the
Mortgagor under this Mortgage without any notice or expiration of time
under the statute being necessary. All other provisions of any statute are
deemed to be negatived or varied only so far as they are inconsistent with
the terms and provisions expressed in this Mortgage.
18.2 EXCLUSION
Any statute, proclamation, order, regulation, ordinance or moratorium
whether now existing or to come into force in the future which operates
directly or indirectly so as to abrogate, extinguish, impair, diminish,
xxxxxx, delay or otherwise prejudicially affect any rights, powers or
remedies given by this Mortgage or accruing to the Mortgagee, or to modify,
vary or affect in favour of the Mortgagor the obligations of the Mortgagor
under this Mortgage, is negatived and excluded to the full extend that the
Mortgagor may lawfully so agree.
19. FURTHER ASSURANCE
The Mortgagor shall, whenever requested by the Mortgagee and at the cost
and expense of the Mortgagor, do or cause to be done anything requested by
the Mortgagee:
(a) for more satisfactorily assuring or securing to the Mortgagee the
Mortgaged Property in a manner not inconsistent with any of the
provisions of this Mortgage; or
(b) for assisting in the execution or exercise of any power, including,
without limitation, the execution of any other document or agreement;
the delivery of documents or evidence of title including delivery of
all Certificates or other documents of title and execution and
delivery of blank Share Transfers or other transfers.
20. DISCHARGE
Subject to clause 14.2, when the Mortgagee is satisfied that all the
Secured Moneys have been paid in full or satisfied in accordance with the
provisions of this Mortgage and upon payment or retention of all costs,
charges and expenses incurred by or payable to the Mortgagee, its
Authorised Representatives or any Receiver or Attorney, the Mortgagee shall
at the request and cost of the Mortgagor reconvey, surrender or release
(whatever the case requires) to the Mortgagor or as it
directs the Mortgaged Property or such part of it as then remains mortgaged
in favour of the Mortgagee, freed and discharged from this Mortgage and all
of its powers, authorities and provisions.
21. NOTICES
21.1 METHOD OF GIVING NOTICES
A notice, consent, approval or other communication (each a "NOTICE") under
this Mortgage shall be in writing signed by or on behalf of the person
giving it, addressed to the person to whom it is to be given and:
(a) delivered;
(b) sent by pre-paid mail; or
(c) transmitted by facsimile,
to that person's address.
21.2 TIME OF RECEIPT
A Notice given to a person m accordance with this clause is treated as
having been given and received:
(a) if delivered on the day of delivery if delivered before 4:00 pm (local
time in the place of receipt) an a Business Day, otherwise on the next
Business Day;
(b) if sent by pre-paid mail on the day of actual delivery if delivered
before 4:00 pm (local time in the place of receipt) on a Business Day,
otherwise on the next Business Day; and
(c) if transmitted by facsimile and the transmission report states that it
was sent in full and without error, on the day of transmission ff that
report states that the transmission was completed before 4:00 pm
(local time in the place oil receipt) on a Business Day (or the
equivalent in another time zone), otherwise on the next Business Day.
21.3 ADDRESS FOR NOTICES
For the purposes of this clause, a person (the "SENDER") may take the
address and facsimile number of another person (the "RECIPIENT") to be:
(a) the address and number set out below; or
(b) where the recipient notifies the sender of another address or number,
the last address or number so notified to it:
MORTGAGOR
Attention: Woodcombe Limited
Mr. Xxxxx Xxxxxxxx
Address: X/- 00 Xxxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxxx 0000
Facsimile: (00) 0000 0000
MORTGAGEE
Attention: Manager - Specialised Leasing, Global Structured
Finance, ANZ Investment Bank
Address: Xxxxx 00, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx 0000
Facsimile: (00) 0000 0000
LAW AND JURISDICTION
22.1 GOVERNING LAW
This Mortgage is governed by the law in force in Victoria, Australia.
22.2 JURISDICTION
The parties submit to the non-exclusive jurisdiction of the courts
exercising jurisdiction in Victoria, Australia and any courts that may hear
appeals from those courts in respect of any proceedings in connection with
this Mortgage.
22.3 PROCESS AGENT
The Mortgagor appoints Thornycroft Maritime & Associates (Aust.) Pty Ltd of
00 Xxxxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxxx, 0000 as its agent for the
service of any writ, order or other legal process within Australia.
23. GENERAL
23.1 SET-OFF
If an Event of Default occurs, the Mortgagee may, without notice to the
Mortgagor, combine, consolidate, merge or apply all or any part of any
credit balance standing to any account of the Mortgagor with any office or
branch of the Mortgagee or any amount available to the Mortgagee by way of
set-off, lien or counterclaim in or towards satisfaction of the Secured
Moneys. The Mortgagee may for this purpose:
(a) redeem, vary the terms and conditions of, or appropriate all or any
part Mortgagor and the Mortgagee on or under which the Mortgagee may
be indebted to the Mortgagor, notwithstanding arty prior agreement to
the contrary or the fact that the respective liabilities may not be
expressed in the same currency;
(b) effect any currency conversion the Mortgagee considers necessary or
desirable; and
(c) in the name of the Mortgagor, do all such acts and execute and deliver
all such documents as may be required to effect any combination,
consolidation, merger or application under this subclause.
23.2 WAIVER
The non-exercise of or delay in exercising any poster or right of a party
does not operate as a waiver of that power or right, nor does any single
exercise of a power or right preclude any other or further exercise of it
or the exercise of any other power or right. A power or right may only be
waived in writing, signed by the party to be bound by the waiver.
23.3 RIGHTS CUMULATIVE
The rights and remedies provided in this Mortgage are cumulative and do not
exclude any rights or remedies provided by law.
23.4 AMENDMENT
Except to the extent provided in clause 23.2, this Mortgage may only be
amended or supplemented in writing signed by the parties.
23.5 ASSIGNMENT
(a) The Mortgagor may not assign or transfer all or any part of its rights
or obligations under this Mortgage without the prior consent of the
Mortgagee.
(b) The Mortgagee may assign or transfer all or any part of its rights or
obligations under this Mortgage without the consent of the Mortgagor.
23.6 MORTGAGEE'S STATEMENT CONCLUSIVE
A statement, signed on behalf of the Mortgagee by any of its Authorised
Representatives, as to any matter or of any amount (including, without
limitation, the amount of the Secured Moneys) at the date specified in the
statement is conclusive in the absence of manifest error.
23.7 SEVERABILITY
Any provision in this Mortgage which is invalid or unenforceable in any
jurisdiction is to be read down for the purposes of that jurisdiction if
possible, so as to be valid and enforceable, and is Otherwise capable of
being severed to the extent of the invalidity or unenforceability, without
affecting the remaining provisions of this Mortgage or affecting the
validity or enforceability of that provision in any other jurisdiction.
23.8 COUNTERPARTS
This Mortgage may be executed in any number of counterparts and all of
those
counterparts taken together constitute one and the same instrument.
This Mortgage is binding upon the Mortgagor whether or not it has been
executed by the Mortgagee.
23.9 ATTORNEYS
Each attorney who executes this Mortgage on behalf of a party declares that
the attorney has no notice of any revocation, suspension or variation of
the power of attorney under the authority of which the attorney executes
this Mortgage.
SCHEDULE 1
PRESENT SHARES
Name of Company: Cover-All Technologies Inc. (formerly Warner
Insurance Services, Inc.)
No. of Shares: 330,000
Share Certificate Number: 22006
Par Value: $.01
Class: Common Stock
SCHEDULE 2
IRREVOCABLE STOCK POWER
FOR VALUE RECEIVED, the Undersigned does hereby sell, assign and transfer to
________________________________________________________ (_____________) shares
of the Common Stock of Cover-All Technologies Inc., a Delaware corporation (the
"Corporation"), represented by Certificate No. __________, standing in the name
of the undersigned on the books of said Corporation.
The undersigned does hereby irrevocably constitute and appoint ________________
__________ attorney to transfer the said stock on the books of the Corporation,
with full power of substitution in the premises.
Dated:
WOODCOMBE LIMITED
By:
Name:
Title:
EXECUTED as a deed.
SIGNED, SEALED and DELIVERED for
WOODCOMBE LIMITED under power of
attorney in the presence of: /s/ Xxxxx X. X. Xxxxxxxx
--------------------------------
Signature of attorney
/s/ Xxxxxxxx X. Xxxxxxxxx Xxxxx X. X. Xxxxxxxx
---------------------------------- --------------------------------
Signature of witness Name of attorney
Xxxxxxxx X. Xxxxxxxxx 10/9/98
---------------------------------- --------------------------------
Name of witness Date of power of attorney
SIGNED, SEALED and DELIVERED for
AUSTRALIA AND NEW ZEALAND
BANKING GROUP LIMITED under
power of attorney in the presence of: /s/ Xxxxxx Xxxx Xxxxx
--------------------------------
Signature of attorney
/s/ Xxxxxxxx X. Xxxxxxxxx Xxxxxx Xxxx Xxxxx
---------------------------------- --------------------------------
Signature of witness Name of attorney
Xxxxxxxx X. Xxxxxxxxx 3/7/98
---------------------------------- --------------------------------
Name of witness Date of power of attorney
