Exhibit 10.2
NESS SECURITY PRODUCTS PTY LIMITED
(ACN 069 984 372)
FAI INSURANCES LIMITED
(ACN 004 304 545)
___________________________________
GUARANTEE AND INDEMNITY
___________________________________
ATANASKOVIC HARTNELL
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LAWYERS - CORPORATE, FINANCE & TAXATION
Level 10
Atanaskovic Hartnell House
00-00 Xxxxxxxxx Xxxxxx
Xxxxxx XXX
Xxxxxxxxx 0000
GUARANTEE AND INDEMNITY
DEED POLL dated
BY NESS SECURITY PRODUCTS PTY LIMITED (ACN 069 984 372) of Xxxx 0, 000 Xxxxxxxx
Xxxxxxx, Xxxxx Xxxxx, Xxx Xxxxx Xxxxx (the "Guarantor")
IN FAVOUR OF FAI INSURANCES LIMITED (ACN 004 304 545) of Level 42, 00 Xxxxxx
Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx (the "Lender")
IN RELATION TO THE OBLIGATIONS OF FAI HOME SECURITY PTY LIMITED (ACN 050 064
214) of Level 7, 00 Xxxxxxx Xxxxxxx, Xxxxx Xxxxxx, Xxx Xxxxx Xxxxx (the
"Borrower").
OPERATIVE PART
1. INTEPRETATION
1.1 Definitions
The following definitions apply unless the context requires otherwise:
"Administration" means, in relation to any corporation, any 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, provisional
liquidation, liquidation, winding up, dissolution, receivership, official
management or administration within the meaning of Part 5.3A of the Corporations
Law or anything analogous to or having a similar effect under the law of any
jurisdiction.
"Administration Proceeds" means, in the case of an Administration of a Relevant
Company, any dividends or other moneys paid or payable by the Administrator to
the Guarantor.
"Administrator" means:
(a) the person who has authority to carry out the Administration and includes
any person in whom is vested any property or rights of the person subject
to the Administration; and
(b) a receiver, receiver and manager and scheme manager;
"Collateral Security" means any present or future Security Interest or other
right given to or held by the Lender to secure the payment of the Guaranteed
Moneys;
"Facility Agreement" means the facility agreement dated about the date of this
Deed made between the Lender and the Borrower;
"Guaranteed Moneys" means all moneys and damages:
(a) which now or in the future are owing (whether actually or contingently) by
the Borrower to the Lender;
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(b) which having become owing (actually or contingently), cease to be owing
under any law relating to Administration and remain unpaid by the Borrower
and unreleased by the Lender;
(c) that now or in the future there is a prospect may become owing (whether
actually or contingently) by the Borrower to the Lender;
in connection with the Facility Agreement and, without limitation, includes
moneys payable:
(d) by the Borrower alone or jointly or severally with any other person;
(e) by the Borrower in its own right or in any capacity;
(f) to the Lender in its own right or in any capacity; and
by the Borrower as liquidated or unliquidated damages caused or contributed to
by any breach by the Borrower of any obligation owed by the Borrower to the
Lender under the Facility Agreement, and includes anything which but for
anything referred to in Clause 3.2 would be Guaranteed Moneys;
"Moneys Payable" means:
(a) the Guaranteed Moneys; and
(b) any other moneys payable by the Guarantor to the Lender under this Deed;
"Prescribed Rate" means 7.75%;
"Secured Property" means any property secured in favour of the Lender pursuant
to the Charge or any other Collateral Security.
1.2 Facility Agreement definitions and interpretation
Definitions and rules of interpretation set out in the Facility Agreement
apply in this Deed unless the context requires otherwise or the relevant
term is defined in this Deed.
2. CONSIDERATION
The Guarantor has entered into this Deed for valuable consideration from
the Lender receipt of which is acknowledged by its execution of this Deed.
3. GUARANTEE AND INDEMNITY
3.1 Guarantee
(a) The Guarantor guarantees to the Lender the punctual payment of the
Guaranteed Moneys by the Borrower.
(b) If at any time the Borrower defaults in payment of any part of the
Guaranteed Moneys the Guarantor must pay to the Lender on demand that
part of the Guaranteed Moneys.
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3.2 Indemnity and Payment Obligation
(a) If the Guaranteed Moneys are or are reasonably likely to be
irrecoverable on the due date for payment because:
(i) the Guarantor or any person purported to be primarily liable is
discharged from an obligation to pay any part of the Guaranteed
Moneys for any reason other than that payment in full has been
made;
(ii) any obligation of the Borrower to the Lender or any agreement or
transaction between them relating to the Guaranteed Moneys is
void, voidable or otherwise unenforceable in accordance with its
terms on the due date for payment for any reason;
(iii) of the Administration of the Borrower or the Guarantor
including, without limitation, as a result of any refund made by
the Lender to any Administrator; or
(iv) the due date for payment of any part of the Guaranteed Moneys is
deferred without the Lender's express written agreement,
the Guarantor must:
(v) indemnify the Lender against the Guaranteed Moneys being
irrecoverable, and
(vi) pay to the Lender on the due date for payment a sum equal to the
amount of the irrecoverable Guaranteed Moneys.
(b) The Guarantor's obligations under Clauses 3.2(a) (v) and (vi) are
separate and independent from each other and from the Guarantor's
obligations under Clause 3.1.
4. THE LENDER'S RIGHTS
4.1 Continuity
The Guarantor's obligations under this Deed are continuing obligations for
the whole of the Moneys Payable.
4.2 Primary Obligations
The Guarantor's obligation to pay the Moneys Payable is a primary
obligation and the Lender is not obliged to proceed against or enforce any
Collateral Security or other right against the Borrower or demand payment
from the Borrower before the Moneys Payable become due for payment.
4.3 Irrevocable and Unconditional
The Guarantor's obligations under this Deed are unconditional and
irrecoverable.
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4.4 Preservation of the Guarantor's Obligations
The Guarantor's obligations and the Lender's rights will not be affected in
whole or in part by anything which might abrogate, prejudice or limit them
or the effectiveness of this Deed, including, without limitation, any of
the following:
(a) any release, termination, variation, novation, renewal or assignment
of any agreement or transaction under which any Guaranteed Moneys are
or purport to be payable;
(b) this Deed, any Collateral Security or any other transaction or
agreement between the Borrower and the Lender or any obligation owed
by the Borrower to the Lender in relation to the Guaranteed Moneys
being void, voidable or otherwise unenforceable by the Lender in
accordance with its terms or the Lender being otherwise estopped from
receiving the Guaranteed Moneys from the Borrower;
(c) the granting of any forbearance, time or other indulgence to or the
making of any composition, compromise or arrangement with or the
discharge or release of the Guarantor, Borrower or any other person;
(d) the Administration of any Relevant Company;
(e) (i) the amendment of the constitution or other constitutional
document of any Relevant Company; or
(ii) the Borrower or the Guarantor becoming a member of a partnership,
joint venture or association (whether incorporated or
unincorporated);
(f) the fact that no demand for the payment of the Moneys Payable has been
made on the Borrower or other Relevant Company;
(g) any failure by the Lender to disclose any information to the Guarantor
or any representation made or information given by the Lender to the
Guarantor;
(h) the failure to give the Guarantor notice of default by the Borrower or
to obtain consent from the Guarantor to any arrangement or agreement
made with the Borrower;
(i) the value of any Collateral Security or the value placed on it by the
Lender in the Administration of a Relevant Company;
(j) any negotiable or other instrument being in circulation or
outstanding;
(k) any Administration of the Guarantor or the Borrower or, except as
provided in this Deed, receipt of any Administration Proceeds;
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(l) the obtaining, release, variation or renewal by the Lender of any
Collateral Security or any agreement or arrangement affecting the
priority of any Collateral Security;
(m) the release or discharge of any Relevant Company under any agreement,
statute or principle of law or equity;
(n) any refusal or failure by the Lender to obtain, perfect, register,
stamp, enforce, or assign any Collateral Security or any negotiable
instrument, judgment, order or award relating to the Moneys Payable;
or
(o) any act or omission of the Lender which prejudices the Guarantor,
it being the Guarantor's intent that its obligations under this Deed must
be absolute and unconditional in any and all circumstances irrespective of
the consent or knowledge or lack of consent or knowledge of the Guarantor,
the Lender or the Borrower or any rule of law or equity to the contrary.
4.5 Suspension of Guarantor's Rights
The Guarantor:
(a) waives any right to be subrogated to or otherwise have the benefit of
this Deed or any Collateral Security or any other right of the Lender
until:
(i) the Moneys Payable have been satisfied in full; and
(ii) in the reasonable opinion of the Lender, any payment towards the
satisfaction of the Moneys Payable is not void, voidable or
otherwise unenforceable or refundable;
(b) must not exercise a right of set-off or counterclaim available to
itself or any other Relevant Company which reduces or extinguishes the
obligation of the Borrower or the Guarantor to pay the Moneys Payable;
and
(c) must not until the Moneys Payable have been satisfied in full make any
claim or enforce any right against the Borrower or any Relevant
Company or their respective property,
and the Lender is not obliged to xxxxxxxx in favour of Guarantor any
Collateral Security or any property that the Lender has an interest in or
may be entitled to receive.
4.6 Payment to the Lender
Any amount received by a Guarantor in contravention of Clause 4.5 must be
held on trust for the Lender and must be paid to the Lender immediately
upon receipt.
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4.7 Reinstatement of Rights of the Lender
If any transaction or payment relating to the Guaranteed Moneys is void,
voidable or otherwise unenforceable or refundable:
(a) the Lender is entitled to all rights and interests under this Deed and
any Collateral Security given by the Guarantor that it would have had
if the transaction or payment was not void, voidable or unenforceable
or refundable; and
(b) the Guarantor must do each thing and sign each document necessary or
convenient to restore to the Lender its rights and interests under
this Deed or any Collateral Security held by the Lender immediately
before that transaction or payment.
4.8 Binding Certificates, Awards etc
Any certificate, document, judgment, order, award or other thing in favour
of the Lender binding upon the Borrower is binding upon the Guarantor.
4.9 Liabilities after Termination
The Guarantor must pay to the Lender immediately any part of the Moneys
Payable which accrues after revocation or expiration of this Deed if those
Moneys Payable relate to obligations incurred by the Borrower to the
Lender, or any agreement or transaction between them occurring before the
expiration or revocation.
4.10 Guarantor's Security
(a) The Guarantor must:
(i) hold on behalf of or at the direction of the Lender any Security
Interest given by any person which secures moneys interests and
damages owing (whether actually or contingently) by the Borrower
to the Guarantor and on demand by the Lender exercise or refrain
from exercising any of those rights; and
(ii) if the proceeds of the exercise of any of those rights are
received by the Guarantor or any person on the Guarantor's
behalf, hold the proceeds on trust for the Lender and cause them
to be paid to the Lender immediately upon receipt.
(b) the Lender must apply the proceeds of the exercise of any of those
rights as follows:
(i) in payment of or in satisfaction of the costs and expenses of the
Lender in relation to this Deed;
(ii) secondly, in payment or satisfaction of the Moneys Payable; and
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(iii) thirdly, in payment to any person entitled to them or authorised
to give receipts for them.
4.11 Administration of the Borrower
(a) Until the Moneys Payable have been paid in full, the Guarantor must:
(i) on demand made by the Lender, prove and claim in the
Administration of the Borrower for the full amount of the moneys
interest or damages owing (whether actually, contingently or
otherwise) by the Borrower to the Guarantor, use its best
endeavours to obtain full payment of those moneys in that
Administration and hold on behalf of or at the direction of the
Lender those moneys, interest and damages and any proof or claim
relating to them;
(ii) direct the Administrator of the Borrower to pay the
Administration Proceeds to the Lender in the form prescribed by
any relevant statute or, if no such form is prescribed, in a
form approved by the Lender; and
(iii) if the Administration Proceeds are received by the Guarantor or
any person on its behalf, cause and permit those moneys to be
paid to the Lender immediately upon receipt.
(b) Until a demand is made by the Lender under Clause 4.11(a) the
Guarantor must not in the Administration of the Borrower:
(i) directly or indirectly claim or receive the benefit of any
Administration Proceeds until the Moneys Payable have been paid
in full; or
(ii) prove or claim for the Administration Proceeds in competition
with the Lender so as to diminish any distribution, dividend or
payment which but for that claim or proof the Lender would be
entitled to receive, until the Moneys Payable have been paid in
full and the Lender is of the opinion that no payment of those
moneys is or likely to become void, voidable or otherwise
enforceable or refundable.
5. PAYMENTS
5.1 Demand
If the Moneys Payable become due and payable in accordance with this Deed,
the Guarantor must pay to the Lender the Moneys Payable on demand by the
Lender.
5.2 Appropriation of Payments
(a) the Lender is not obliged to pay or set off against the Moneys Payable
any moneys:
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(i) held by the Lender on any account other than the Moneys Payable;
(ii) which are or may be recoverable from the enforcement of any
Collateral Security;
(iii) which are owing by the Lender to the Borrower;
(iv) which are Administration Proceeds; or
(v) to which any person has asserted a prior ranking claim,
until the Lender has received payment in full of the Moneys Payable or
the claim is disposed of.
(b) the Lender may:
(i) pay into a suspense account any moneys received by it under this
Deed or any Collateral Security from the Guarantor and hold
those moneys as security for payment of the Moneys Payable and
if this is done the Lender will be deemed not to have
appropriated those moneys towards the payment of Moneys Payable;
and
(ii) at any time appropriate any moneys in the suspense account
towards the satisfaction of the Moneys Payable in any way that
the Lender thinks fit.
(c) The Moneys Payable must be reduced only by moneys actually received
and appropriated after deducting the costs and expenses incurred by
the Lender in obtaining payment.
(d) the Lender is not obliged to disclose to the Guarantor
any appropriation of moneys received from the Borrower or from the
exercise of rights under the Collateral Security or the Administration
of any Relevant Company.
(e) the Lender may, subject to any express provision in this Deed to the
contrary, appropriate any payment towards the satisfaction of any
moneys due for payment by the Guarantor in relation to this Deed in
any way that the Lender thinks fit and notwithstanding any purported
appropriation by the Guarantor.
6. INTEREST
The Guarantor must pay interest on:
(a) any amount owing under this Deed other than under Clause 3 during the
period it remains unpaid; and
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(b) that part (if any) of the Moneys Payable under Clause 3 in relation to
which there is no agreement between the Borrower and the Lender as to
the payment of interest during the period that it is owing,
at the Prescribed Rate.
7. REPRESENTATIONS AND WARRANTIES
The Guarantor represents and warrants that it has not entered into this Deed in
reliance on or as a result of any representation, warranty, statement or conduct
of the Lender or its servants and agents.
8. ASSIGNMENT BY LENDER
This Deed must continue to be binding notwithstanding the assignment of Moneys
Payable to another person and the benefit of this Deed may also be assigned in
whole or part to that person either at that time or later.
9. MISCELLANEOUS
This Deed is the property of the Lender and the Lender is not obliged to give it
to the Guarantor at any time either before or after payment of the Moneys
Payable.
10. GOVERNING LAW, JURISDICTION AND SERVICE OF PROCESS
10.1 Governing Law
This Deed is governed by and must be construed in accordance with the laws
of New South Wales.
10.2 Jurisdiction
The parties irrevocably and unconditionally submit to the non exclusive
jurisdiction of the courts of New South Wales and any courts which have
jurisdiction to hear appeals from any of those courts and the parties waive
any right to object to any proceedings being bought in those courts because
the venue is inconvenient, the courts lack jurisdiction or any other
reason.
11. NOTICES
Any notice, demand, certification or other communication under this Deed
must be given in writing and in the English language, may be given by an
Authorised Officer of the sender and may be given in the manner specified
in any Transaction Document.
12. ATTORNEYS
Each attorney executing this Deed on behalf of a Guarantor covenants to the
Lender that they:
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12.1 have not received notification of the revocation of the power of attorney
under the authority of which they have executed this Deed on behalf of the
Guarantor; and
12.2 are duly authorised to execute this Deed on behalf of the Guarantor.
EXECUTED as a deed poll.
SIGNED for and on behalf of the )
GUARANTOR by )
who certifies that they are duly appointed as )
the attorney of the Guarantor and that they )
have not received notification of the ) ___________________________
revocation of the power of attorney under )
the authority of which they have executed )
this Deed in the presence of: )
_____________________________________ Signature of Witness
_____________________________________ Print Name of Witness
