EXHIBIT 4.43
CONFORMED COPY
SHARE MORTGAGE
ASSOCIATED ELECTRICAL INDUSTRIES LIMITED
and
THE LAW DEBENTURE TRUST CORPORATION p.l.c.
[FREEHILLS LOGO]
MLC Centre Xxxxxx Place Sydney New South Wales 2000 Australia
Telephone 00 0 0000 0000 Facsimile 61 2 9322 4000
xxx.xxxxxxxxx.xxx DX 361 Sydney
SYDNEY MELBOURNE PERTH BRISBANE HANOI HO CHI MINH CITY SINGAPORE
Correspondent Officers JAKARTA KUALA LUMPUR
Liability limited by the Solicitors' Limitation of Liability Scheme, approved
under the Professional Standards Act 1994 (NSW)
Reference AT:36E
Share mortgage
TABLE OF CONTENTS
Clause Page
1 DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Interpretation 4
1.3 Incorporated definitions 6
1.4 Business Day 6
1.5 Security Trustee 6
1.6 Security Trust and Intercreditor Deed 6
1.7 Conflict 6
2 MORTGAGE 7
2.1 Mortgage 7
2.2 Priority 7
2.3 Prospective liability 7
2.4 Limit 7
3 REPRESENTATIONS AND WARRANTIES 7
4 UNDERTAKINGS OF THE MORTGAGOR 8
4.1 Performance under the Relevant Documents 8
4.2 Dividends and voting 8
4.3 Other Additional Rights 9
4.4 Notices to the Security Trustee 9
4.5 Negative pledge 10
4.6 Further security 10
4.7 Title Documents 10
4.8 Registration and protection of security 11
4.9 Proxies and authorised representatives 11
4.10 Title Documents for Mortgaged Property 11
4.11 Term of undertakings 12
4.12 Interest on demands 12
5 ENFORCEMENT 12
5.1 When enforceable 12
5.2 Assistance in realisation 12
6 RECEIVER 13
6.1 Appointment of Receiver 13
6.2 Agency of Receiver 13
6.3 Powers of Receiver 13
6.4 Nature of Receiver's Powers 15
6.5 Status of Receiver after commencement of winding up 15
6.6 Powers exercisable by the Security Trustee 15
6.7 Set-off 16
6.8 Notice of exercise of rights 16
6.9 Termination of receivership and possession 16
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Clause Page
7 APPLICATION AND RECEIPTS OF MONEY 16
7.1 Order of application 16
7.2 Money actually received 16
7.3 Notice of a subsequent Encumbrance 17
7.4 Security Trustee's receipts 17
7.5 Conversion of currencies on application 17
7.6 Amounts payable on demand 18
8 POWER OF ATTORNEY 18
8.1 Appointment of Attorney 18
8.2 Delegation and substitution 18
8.3 Ratification 18
8.4 Indemnity 18
9 PROTECTION 19
9.1 Protection of third parties 19
9.2 Protection of the Security Trustee, Receiver and Attorney 19
10 TAX, COSTS, EXPENSES, INDEMNITY AND RELEASE 19
10.1 Tax 19
10.2 GST 20
10.3 Expenses 20
10.4 Currency indemnity 21
10.5 Gross up 21
10.6 Release of security 21
11 SAVING PROVISIONS 21
11.1 Statutory powers 21
11.2 Continuing security 22
11.3 No merger of security 22
11.4 Exclusion of moratorium 22
11.5 Conflict 22
11.6 Consent of Security Trustee 22
11.7 Delegation 23
11.8 Completion of blank securities 23
11.9 Principal obligations 23
11.10 No obligation to marshal 23
11.11 Non-avoidance 23
11.12 Increase in financial accommodation 24
12 THIRD PARTY PROVISIONS 24
12.1 Independent obligations 24
12.2 Unconditional nature of obligations 24
12.3 No competition 26
13 GENERAL 27
13.1 Confidential information 27
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Clause Page
13.2 Performance by Security Trustee of the Mortgagor's obligations 27
13.3 Mortgagor to bear cost 27
13.4 Notices 27
13.5 Governing law and jurisdiction 27
13.6 Prohibition and enforceability 27
13.7 Waivers 28
13.8 Variation 28
13.9 Cumulative rights 28
13.10 Assignment 28
13.11 Attorneys 29
13.12 Counterparts 29
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THIS SHARE MORTGAGE
is made on 19 May 2003 between the following parties:
1. ASSOCIATED ELECTRICAL INDUSTRIES LIMITED
COMPANY NUMBER: 0062919
of New Century Park, PO Box 53, Coventry CV 3 IJH,
England
(MORTGAGOR)
2. THE LAW DEBENTURE TRUST CORPORATION p.l.c.
of 5th Floor, 000 Xxxx Xxxxxx, Xxxxxx, XX0X 0XX,
Xxxxxx Xxxxxxx, as security trustee for the Secured
Creditors on the terms and conditions set out in the
Security Trust and Intercreditor Deed
(SECURITY TRUSTEE)
RECITALS
A. The Mortgagor is or will be the legal and beneficial
owner of the Mortgaged Property.
B. The Mortgagor has agreed to mortgage the Mortgaged
Property to secure the payment of the Secured
Obligations.
THIS DEED WITNESSES
that in consideration of, among other things, the mutual promises
contained in this deed, the parties agree:
1 DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this deed:
AUD$ means the lawful currency of Australia;
ADDITIONAL RIGHTS means all present and future rights and
property interests attaching to or arising out of or otherwise
in respect of the holding of an interest in:
(a) the Shares;
(b) any Distributions paid or payable, any bonus shares
or other Marketable Securities issued, and any rights
to take up Marketable Securities, in respect of the
Shares;
(c) any proceeds of, or from the disposal of, any Shares;
(d) any Marketable Security resulting from the
conversion, consolidation or subdivision of any
Share; and
(e) any in specie distribution in respect of any Shares;
ATTORNEY means an attorney appointed under this deed;
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BUSINESS DAY means:
(a) for the purposes of clause 13.4, a day on which banks
are open for business in the city where the notice or
other communication is received excluding a Saturday,
Sunday or public holiday; and
(b) for all other purposes, a day on which banks are open
for business in London and Sydney excluding a
Saturday, Sunday or public holiday;
COLLATERAL SECURITY means any present or future Encumbrance,
Guarantee or other document or agreement created or entered
into by the Mortgagor, an Obligor or any other person as
security for the payment and performance of any of the Secured
Obligations;
COMPANY means Marconi Australia Holdings Pty Limited ABN 28
004 344 272;
CORPORATIONS ACT means the Corporations Act 2001;
DEBTOR means Marconi Corporation plc (registered in England
and Wales with company number 0067307);
DISTRIBUTION means any money owing now or in the future in
respect of the Mortgaged Property and includes, but is not
limited to, a cash dividend or other monetary distribution;
DOLLARS, A$ and $ means the lawful currency of the
Commonwealth of Australia;
ENCUMBRANCE means an interest or power:
(a) reserved in or over an interest in any asset
including, but not limited to, any retention of
title; or
(b) created or otherwise arising in or over any interest
in any asset under a bill of sale, mortgage, charge,
lien, pledge, trust or power,
by way of, or having similar commercial effect to, security
for the payment of a debt, any other monetary obligation or
the performance of any other obligation, and includes, but is
not limited to, any agreement to grant or create any of the
above;
GOVERNMENT AGENCY means any government or any governmental,
semi-governmental, administrative, fiscal or judicial body,
department, commission, authority, tribunal, agency or entity;
GST means the goods and services tax levied under A New Tax
System (Goods and Services Tax) Act 1999 (GST ACT);
GUARANTEE means any guarantee, suretyship, letter of credit,
letter of comfort or any other obligation (whatever called and
of whatever nature):
(a) to provide funds (whether by the advance or payment
of money, the purchase of or subscription for
Marketable Securities, the purchase of assets or
services, or otherwise) for the payment or discharge
of;
(b) to indemnify any person against the consequences of
default in the payment of; or
(c) to be responsible for,
any debt or monetary liability of another person or the
assumption of any responsibility or obligation in respect of
the insolvency or the financial condition of any other person;
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MARKETABLE SECURITIES has the following meaning:
(a) the meaning given to that expression in the
Corporations Act;
(b) any unit (whatever called) in a trust estate which
represents a legal or beneficial interest in any of
the income or assets of a trust estate and includes,
but is not limited to, any option to acquire any unit
as described in this paragraph (b);
(c) any option or right in respect of an unissued share;
(d) any convertible note; and
(e) any instrument or security which is a combination of
any of the above;
MORTGAGE means the security created by this deed;
MORTGAGED PROPERTY means all of the Mortgagor's present and
future interest in:
(a) the Shares; and
(b) the Additional Rights;
OFFICER means:
(a) in relation to the Mortgagor, a director or a
secretary of the Mortgagor;
(b) in relation to the Security Trustee, any officer, as
that expression is defined in section 9 of the
Corporations Act, of the Security Trustee; and
(c) in relation to a Receiver, any Delegate or an
Attorney which is a corporation, any officer, as that
expression is defined in section 9 of the
Corporations Act, of that Receiver, Delegate or
Attorney;
PAYMENT CURRENCY means the currency in which any payment is
actually made;
POWER means any right, power, authority, discretion or remedy
conferred on the Security Trustee, any Delegate, Receiver or
Attorney by any Relevant Document or any applicable law;
RECEIVER means a receiver or receiver and manager appointed
under this deed;
RELEVANT DOCUMENTS has the meaning given to it in the Security
Trust and Intercreditor Deed;
SECURED CREDITORS has the meaning given to it in the Security
Trust and Intercreditor Deed;
SECURED OBLIGATIONS means all present and future indebtedness,
liabilities and obligations (for the avoidance of doubt,
including any liabilities and obligations which have been
cash-collateralised by the Mortgagor) at any time of the
Mortgagor under the Relevant Documents, both actual and
contingent and whether incurred solely or jointly or in any
other capacity together with any of the following matters
relating to or arising in respect of those liabilities and
obligations:
(a) any refinancing, novation, deferral or extension;
(b) any obligation relating to any increase in the amount
of such obligations;
(c) any claim for damages or restitution; and
(d) any claim as a result of any recovery by the
Mortgagor of a payment or discharge,
non-allowability, on the grounds of preference,
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and any amounts which would be included in any of the above
but for any discharge, non-provability or unenforceability of
those amounts in any insolvency or other proceedings
(including interest accruing after the commencement of any
insolvency or other proceedings);
SECURITY TRUST means the trust established under clause 6 of
the Security Trust and Intercreditor Deed;
SECURITY TRUST AND INTERCREDITOR DEED means the document so
entitled dated on or about the date of this deed between,
inter alia, the Debtor, the Security Trustee and the
Mortgagor;
SECURITY TRUST FUND means:
(a) all right, title and interest vested in the Security
Trustee (in its capacity as trustee of the Security
Trust) under the Transaction Security and the other
Relevant Documents including all moneys recovered
under them (whether upon enforcement or otherwise);
(b) all money paid to the Security Trustee under this
deed; and
(c) all other property acquired by the Security Trustee
and intended to be held for the benefit of the
Secured Creditors upon the trusts of this deed;
SHARES means any shares in the Company;
SUBSIDIARY in relation to a corporation means:
(a) a subsidiary of the corporation for the purposes of
the Corporations Act;
(b) if the corporation has appointed or is in a position
to appoint one or more directors of another
corporation and that director or those directors are
in a position to cast, or control the casting of,
more than one-half of the maximum number of votes
that might be cast at a meeting of directors of that
other corporation - that other corporation; and
(c) any other corporation or entity that is at any time
after the date of this deed a subsidiary under
paragraphs (a) or (b) of this definition but ceases
to be a subsidiary because of an amendment to, or a
consolidation or replacement of, the Corporations
Act;
TAX means:
(a) any tax (including the GST), levy, charge, impost,
duty, fee, deduction, compulsory loan or withholding;
or
(b) any income, stamp or transaction duty, tax or charge,
which is assessed, levied, imposed or collected by any
Government Agency and includes, but is not limited to, any
interest, fine, penalty, charge, fee or other amount imposed
on or in respect of any of the above;
TITLE DOCUMENT means any original, duplicate or counterpart
certificate or document evidencing title or ownership of an
asset including any contract note, entitlement notice, marked
transfer or share certificate.
1.2 INTERPRETATION
In this deed, headings and boldings are for convenience only
and do not affect the interpretation of this deed and, unless
the context otherwise requires:
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(a) words importing the singular include the plural and
vice versa;
(b) words importing a gender include any gender;
(c) other parts of speech and grammatical forms of a word
or phrase defined in this deed have a corresponding
meaning;
(d) an expression importing a natural person includes any
company, partnership, joint venture, association,
corporation or other body corporate and any
Government Agency;
(e) a reference to any thing (including, but not limited
to, any right) includes a part of that thing but
nothing in this clause 1.2(e) implies that
performance of part of an obligation constitutes
performance of the obligation;
(f) a reference to a clause, party, annexure, exhibit or
schedule is a reference to a clause of, and a party,
annexure, exhibit and schedule to, this deed and a
reference to this deed includes any annexure, exhibit
and schedule;
(g) a reference to a statute, regulation, proclamation,
ordinance or by-law includes all statutes,
regulations, proclamations, ordinances or by-laws
amending, consolidating or replacing it, whether
passed by the same or another Government Agency with
legal power to do so, and a reference to a statute
includes all regulations, proclamations, ordinances
and by-laws issued under that statute;
(h) a reference to a document includes all amendments or
supplements to, or replacements or novations of, that
document;
(i) a reference to a party to a document includes that
party's successors and permitted assigns;
(j) no provision of this deed will be construed adversely
to a party solely on the ground that the party was
responsible for the preparation of this deed or that
provision;
(k) a reference to an agreement other than this deed
includes an undertaking, deed, agreement or legally
enforceable arrangement or understanding whether or
not in writing;
(l) a reference to an asset includes all property of any
nature, including, but not limited to, a business,
and all rights, revenues and benefits;
(m) a reference to a document includes any agreement in
writing, or any certificate, notice, instrument or
other document of any kind;
(n) a reference to liquidation includes official
management, appointment of an administrator,
compromise, arrangement, merger, amalgamation,
reconstruction, winding-up, dissolution, assignment
for the benefit of creditors, scheme, composition or
arrangement with creditors, insolvency, bankruptcy,
or any similar procedure or, where applicable,
changes in the constitution of any partnership or
person, or death;
(o) a reference to a body, other than a party to this
deed (including, without limitation, an institute,
association or authority), whether statutory or not:
(1) which ceases to exist; or
(2) whose powers or functions are transferred to
another body,
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is a reference to the body which replaces it or which
substantially succeeds to its powers or functions;
and
(p) "continuing" in relation to an Enforcement Event,
shall be construed as a reference to an acceleration
of any Secured Obligation (other than Secured
Obligations arising under the New Bonding Facility
Agreement) where such acceleration has not been
rescinded in writing or a declaration that the
Secured Obligations (other than Secured Obligations
arising under the New Bonding Facility Agreement) are
prematurely due and payable (other than solely as a
result of it becoming unlawful for a Secured Creditor
to perform its obligations under the Relevant
Documents) where such declaration has not been
revoked in writing or any failure by an Obligor to
pay any principal amount in respect of any Secured
Obligations (other than Secured Obligations arising
under the New Bonding Facility Agreement) whether on
maturity or otherwise which has not been remedied or
waived in writing. For the purposes of this clause
1.2(p), the definition of "Secured Obligations" shall
have the same meaning as in the Security Trust and
Intercreditor Deed.
1.3 INCORPORATED DEFINITIONS
A word or phrase (other than one defined in clause 1.1)
defined in the Security Trust and Intercreditor Deed has the
same meaning in this deed.
1.4 BUSINESS DAY
Where the day on or by which any thing is to be done is not a
Business Day, that thing must be done on or by the preceding
Business Day.
1.5 SECURITY TRUSTEE
The Mortgagor acknowledges and agrees that the Security
Trustee has entered into this deed and has undertaken or will
undertake all covenants, terms and conditions on its part to
be observed and performed in its capacity as trustee of the
Security Trust only. Clause 14.5 of the Security Trust and
Intercreditor Deed applies to this deed as if that clause was
set out in full in this deed.
1.6 SECURITY TRUST AND INTERCREDITOR DEED
Notwithstanding any provision to the contrary contained
herein, the parties agree that this deed is subject in all
respects to the terms of the Security Trust and Intercreditor
Deed.
1.7 CONFLICT
Notwithstanding any provision to the contrary contained
herein, the parties agree that this deed is subject in all
respects to the terms of the Security Trust and Intercreditor
Deed and for the avoidance of doubt, in the event of any
inconsistency, the provisions of the Security Trust and
Intercreditor Deed shall prevail.
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2 MORTGAGE
2.1 MORTGAGE
The Mortgagor as beneficial owner mortgages and assigns the
Mortgaged Property to the Security Trustee as security for the
due and punctual payment and performance of the Secured
Obligations.
2.2 PRIORITY
The parties intend that the Mortgage take priority over all
other Encumbrances of the Mortgagor.
2.3 PROSPECTIVE LIABILITY
(a) The parties acknowledge that the maximum amount of
the prospective liability secured by this deed for
the purposes of establishing priority under section
282(3) of the Corporations Act is AUD$120,000,000.
(b) The Security Trustee may from time to time lodge a
notice under section 268(2) of the Corporations Act
on behalf of the Mortgagor specifying an increase in
the maximum amount of the prospective liability
referred to in clause 2.3(a) and from the date of
lodgement the amount specified in clause 2.3(a) is to
be regarded as varied to the amount specified in that
notice.
(c) Neither clause 2.3(a) nor clause 2.3(b) in any way
affects or limits the actual amount of Secured
Obligations which may in fact be secured by the
Mortgage.
(d) Clauses 2.3(a), (b) and (c) are to be construed
independently of each other.
2.4 LIMIT
(a) Despite any other provision in this deed other than
clause 2.4(b) and despite the fact that this Mortgage
is security for the whole of the Secured Obligations,
the amount ultimately recoverable by the Security
Trustee under this deed is limited to AUD$45,667,000.
(b) Despite clause 2.4(a), the Security Trustee may at
any time by written notice to the Mortgagor increase
the amount to such an amount specified in that notice
as to reflect the value of the assets of the
Mortgagor or as agreed between the Security Trustee
and the Mortgagor.
(c) Upon the giving of a notice by the Security Trustee
under clause 2.4(b), and as often as that occurs, the
amount set out in clause 2.4(a) is increased to the
amount specified in that notice.
(d) Nothing in this clause 2.4 restricts or limits any
Power or the exercise of any Power.
3 REPRESENTATIONS AND WARRANTIES
(a) The Mortgagor represents and warrants to the Security
Trustee that:
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(1) it is the sole legal and beneficial owner of
the Shares free from any Security (as such
term is defined in the Security Trust and
Intercreditor Deed) except as created by
this deed; and
(2) the Shares are fully paid up.
(b) The Mortgagor represents and warrants that, as at the
date of this deed, it is not a "foreign company"
which is required to be registered under Division 2
of Part 5B.2 of the Corporations Act.
(c) The Mortgagor undertakes to immediately notify the
Security Trustee if it becomes a "foreign company" as
referred to in clause 3(b) and assist the Security
Trustee to register and file this deed as required
under the Corporations Act to ensure enforceability
and validity against all persons and to be effective
as a security.
4 UNDERTAKINGS OF THE MORTGAGOR
4.1 PERFORMANCE UNDER THE RELEVANT DOCUMENTS
(a) The Mortgagor must fully and punctually perform its
obligations under the Relevant Documents.
(b) The Mortgagor hereby covenants with the Security
Trustee as trustee for the Secured Creditors that it
shall on demand of the Security Trustee discharge all
Secured Obligations and the Mortgagor shall pay to
the Security Trustee when due and payable every sum
at any time owing, due or incurred by the Mortgagor
to the Security Trustee (whether for its own account
or as trustee for the Secured Creditors) or any of
the other Secured Creditors in respect of any such
liabilities provided that neither such covenant nor
the security constituted by this Mortgage nor any
other provision of this Mortgage shall extend to or
include any liability or sum which would, but for
this proviso, cause such covenant, security, or
provisions to be unlawful or prohibited by any
applicable law (including, for the avoidance of
doubt, Section 151 of the Companies Act 1985 (UK)).
4.2 DIVIDENDS AND VOTING
(a) Prior to the occurrence of an Enforcement Event any
time when no Enforcement Event is continuing:
(1) the Mortgagor may receive all Distributions
in respect of the Mortgaged Property; and
(2) the Mortgagor may exercise all voting powers
in respect of the Mortgaged Property
provided that it complies with clause
4.2(b),
without the need for any consent or direction from
the Security Trustee.
(b) The Mortgagor must not exercise any voting powers in
respect of the Mortgaged Property under clause
4.2(a)(2) in any manner which would constitute a
Default or an Event of Default under the Indentures
(as such terms are defined in the Indentures).
(c) Upon the occurrence of an Enforcement Event and at
any time thereafter while such Enforcement Event is
continuing, the rights of the Mortgagor
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under clause 4.2(a) immediately cease and the
Security Trustee, Receiver or Attorney is entitled to
(in the name of the Mortgagor or otherwise and
without any further consent or authority from the
Mortgagor):
(1) receive all Distributions;
(2) exercise (or refrain from exercising) all
voting powers in respect of the Mortgaged
Property to the exclusion of the Mortgagor;
(3) apply all Distributions in accordance with
clause 7.1;
(4) transfer any of the Mortgaged Property into
the name of such nominee(s) of the Security
Trustee as it shall require; and
(5) exercise (or refrain from exercising) the
powers and rights conferred on or
exercisable by the legal or beneficial owner
of any of the Mortgaged Property, including
the right, in relation to any company whose
shares or other securities are included in
the Mortgaged Property, to concur or
participate in:
(A) the reconstruction, amalgamation,
sale or other disposal of such
company or any of its assets or
undertaking (including the
exchange, conversion or reissue of
any shares or securities as a
consequence thereof),
(B) the release, modification or
variation of any rights or
liabilities attaching to such
shares or securities; and
(C) the exercise, renunciation or
assignment of any right to
subscribe for any shares or
securities,
in each case in such manner and on such
terms as the Security Trustee may think fit,
and the proceeds of any such action shall
form part of the Mortgaged Property.
4.3 OTHER ADDITIONAL RIGHTS
(a) Upon acquisition of any Additional Rights, the
Mortgagor must comply with clause 4.7 in respect of
the Title Documents to those Additional Rights.
(b) The Mortgagor must promptly notify the Security
Trustee after the Mortgagor becomes aware of any
entitlement to any Additional Rights.
4.4 NOTICES TO THE SECURITY TRUSTEE
The Mortgagor must promptly give notice to the Security
Trustee of any of the following:
(a) any proposal of, or notification being given to, the
Mortgagor by any Government Agency requiring the
divestiture of any of the Mortgaged Property; and
(b) the acquisition of any Additional Rights or the right
to acquire any Additional Rights.
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4.5 NEGATIVE PLEDGE
The Mortgagor must not, except as not expressly prohibited
under the terms of the Indentures:
(a) deal with, sell or otherwise part with possession of;
(b) create, permit, suffer to exist, or agree to, any
interest or Encumbrance, other than an Encumbrance in
favour of the Security Trustee over;
(c) attempt to do anything listed in clause 4.5(a) and
(b) in respect of,
any of the Mortgaged Property without the prior written
consent of the Security Trustee.
4.6 FURTHER SECURITY
(a) The Mortgagor must, whenever requested by the
Security Trustee, do or cause to be done anything:
(1) to perfect the security created or intended
to be created in respect of the Mortgaged
Property (which may include the execution by
the Mortgagor of a mortgage, charge or
assignment over all or any of the assets
constituting, or intended to constitute,
Mortgaged Property subject to this deed) or
for the exercise of any Powers of the
Security Trustee; and/or
(2) to facilitate the realisation of the
Mortgaged Property,
including, but not limited to, the execution of any
document (in such form as the Security Trustee may
require in favour of the Security Trustee or its
nominee(s)) or the execution and delivery of blank
transfers.
(b) Without limiting clause 4.6(a), the Mortgagor must,
at the request of the Security Trustee, execute a
legal mortgage over any of the Mortgaged Property.
(c) Any mortgage executed under clause 4.6(b) must be:
(1) in favour of the Security Trustee; and
(2) in the form and substance required by the
Security Trustee, but the Security Trustee
cannot require an obligation which is more
onerous than any obligation contained in any
Relevant Document.
(d) If so requested by the Security Trustee the Mortgagor
shall take all such action as is available to it
(including making all filings and registrations) as
may be necessary for the purpose of the creation,
perfection, protection or maintenance of any
Encumbrance conferred or intended to be conferred on
the Security Trustee by or pursuant to this Mortgage
or any Collateral Security.
4.7 TITLE DOCUMENTS
(a) The Mortgagor must deposit with the Security Trustee,
or as the Security Trustee directs, all the Title
Documents in respect of any of the Mortgaged
Property:
(1) within 10 Business Days of the Mortgagor's
execution of this deed;
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(2) within 10 Business Days of the acquisition
of any asset which forms part of the
Mortgaged Property.
(b) Subject to clause 4.7(c), the Security Trustee or its
nominee may retain the Title Documents until this
Mortgage is discharged in accordance with the
Relevant Documents.
(c) If the Mortgage is enforced by the Security Trustee,
the Security Trustee, Receiver or Attorney is
entitled:
(1) to deal with the Title Documents as if it
was the absolute and unencumbered owner of
the Mortgaged Property to which the Title
Documents relate; and
(2) in exercising a power of sale, to deliver
any Title Document to a purchaser of the
Mortgaged Property to which it relates.
4.8 REGISTRATION AND PROTECTION OF SECURITY
(a) The Mortgagor must ensure that this deed and each
Collateral Security is registered and filed in all
registers in all jurisdictions in which it must be
registered and filed to ensure enforceability and
validity against all persons and to be effective as a
security.
(b) Whenever any part of the Mortgaged Property is
transferred to or retained in a place where this deed
or any Collateral Security, because of an increase in
the Secured Obligations or otherwise, bears
insufficient stamp duty or is not registered or
recorded, or for any other reason is of limited or of
no force or effect, unenforceable, inadmissible in
evidence or of reduced priority, the Mortgagor must
within 14 days after that transfer or retention
ensure that:
(1) this deed and each Collateral Security is
stamped to the satisfaction of the Security
Trustee;
(2) this deed and each Collateral Security is in
full force and effect, enforceable,
admissible in evidence and not of reduced
priority; and
(3) this deed and each Collateral Security is
registered in that place, or that part of
the Mortgaged Property is removed from that
place.
4.9 PROXIES AND AUTHORISED REPRESENTATIVES
The Mortgagor must ensure that any proxy, authorised
representative or attorney complies with the Relevant
Documents.
4.10 TITLE DOCUMENTS FOR MORTGAGED PROPERTY
(a) While Title Documents for Mortgaged Property are, or
in accordance with this deed, should be lodged with
the Security Trustee (or as the Security Trustee
shall direct), the Mortgagor must not elect to
convert evidence of the Mortgaged Property from
certificates to an uncertificated mode for the
purposes of any automated transfer system operated by
the Australian Stock Exchange Limited.
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(b) If the Mortgagor makes any election referred to in
clause 4.10(a), the Security Trustee may treat it as
having no effect.
4.11 TERM OF UNDERTAKINGS
Each of the Mortgagor's undertakings in this clause 4
continues in full force and effect from the date of this deed
until the Mortgage is discharged in accordance with the
Relevant Documents.
4.12 INTEREST ON DEMANDS
If the Mortgagor fails to pay any sum on the due date for
payment of that sum the Mortgagor shall pay interest on any
such sum (before and after any judgment and to the extent
interest at a default rate is not otherwise being paid on such
sum) from the date of demand until the date of payment
calculated on a daily basis at the rate determined in
accordance with the provisions of clause 18.4 (Interest on
Demands) of the Security Trust and Intercreditor Deed.
5 ENFORCEMENT
5.1 WHEN ENFORCEABLE
(a) At any time after the occurrence of an Enforcement
Event and the Security Trustee (acting on
instructions received pursuant to the terms of the
Security Trust and Intercreditor Deed) giving notice
to the Mortgagor with a copy to the Debtor thereof,
the Mortgage and each Collateral Security are
immediately enforceable without the need for any
other demand or notice to be given to the Mortgagor
or any other person.
(b) Upon the occurrence of an Enforcement Event, the
Secured Obligations owing by the Mortgagor to the
Security Trustee under this Mortgage and each
Collateral Security are immediately due and payable
by the Mortgagor without the need for any demand or
notice to be given to the Mortgagor or any other
person and the Security Trustee may, in its absolute
discretion, enforce all or any part of this Mortgage
and any Collateral Security (at the time, in the
manner and on the terms it thinks fit) and take
possession of and hold or dispose of all or any part
of any asset which is the subject of this Mortgage or
any Collateral Security.
5.2 ASSISTANCE IN REALISATION
After the Mortgage has become enforceable the Mortgagor must
take all action required by the Security Trustee, Receiver,
any Delegate or Attorney to assist any of them in the
realisation of the Mortgaged Property and the exercise of any
Power including, but not limited to:
(a) executing all transfers, assignments and assurances
of any of the Mortgaged Property;
(b) performing or causing the performance of all things
necessary or desirable under the law in force in any
place where the Mortgaged Property is situated to
assist the Security Trustee, Receiver, Delegate or
Attorney in the manner described above;
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(c) giving all notices, orders, directions and consents
which the Security Trustee, Receiver, Delegate or
Attorney thinks expedient.
6 RECEIVER
6.1 APPOINTMENT OF RECEIVER
After the occurrence of an Enforcement Event or if a petition
or application is presented for the making of an
administration order in relation to the Mortgagor or if the
Mortgagor or any other person gives written notice of its
intention to appoint an administrator to the Mortgagor or if
requested to do so by the Mortgagor, the Security Trustee may
by deed or otherwise (acting through an authorised officer of
the Security Trustee) (without prior notice to the Mortgagor):
(a) appoint any person or any two or more persons
jointly, or severally, or jointly and severally to be
a Receiver of the Mortgaged Property;
(b) remove any Receiver and on the removal, retirement or
death of any Receiver, appoint another Receiver;
(c) appoint another person(s) as an additional or
replacement Receiver(s); and
(d) fix the remuneration and direct payment of that
remuneration and any costs, charges and expenses of
the Receiver out of the proceeds of any realisation
of the Mortgaged Property.
6.2 AGENCY OF RECEIVER
(a) Subject to clauses 6.5 and 1.5, every Receiver is the
agent of the Mortgagor.
(b) The Mortgagor is responsible for the acts, defaults
and remuneration of the Receiver.
6.3 POWERS OF RECEIVER
Subject to any express exclusion by the terms of the
Receiver's appointment, the Receiver has, in addition to any
powers conferred on the Receiver by applicable law, power to
do any of the following whether or not in possession of the
Mortgaged Property or any part of it:
(a) MANAGE OR CONTROL: to manage, take possession of
Title Documents or assume control of any of the
Mortgaged Property;
(b) SALE: to sell or concur in selling any of the
Mortgaged Property to any person:
(1) by auction, private treaty or tender;
(2) on such terms and special conditions as the
Security Trustee or the Receiver thinks fit;
(3) for cash or for a deferred payment of the
purchase price, in whole or in part, with or
without interest or security;
(4) in conjunction with the sale of any property
by any other person; and
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(5) in one lot or in separate parcels,
and to complete a share transfer in favour of the
Security Trustee, or any other person designated by
the Security Trustee;
(c) GRANT OPTIONS TO PURCHASE: to grant to any person an
option to purchase any of the Mortgaged Property;
(d) ACQUIRE PROPERTY: to acquire any interest in any
property, in the name or on behalf of the Mortgagor,
which on acquisition forms part of the Mortgaged
Property;
(e) BORROWINGS AND SECURITY:
(1) to raise or borrow any money, in its name or
the name or on behalf of the Mortgagor, from
the Security Trustee or any person approved
by the Security Trustee in writing; and
(2) to secure money raised or borrowed under
clause 6.3(e)(1) by an Encumbrance over any
of the Mortgaged Property, ranking in
priority to, equal with, or after, the
Mortgage or any Collateral Security;
(f) COMPROMISE: to make or accept any compromise or
arrangement;
(g) SURRENDER MORTGAGED PROPERTY: to surrender or
transfer any of the Mortgaged Property to any person;
(h) EXCHANGE MORTGAGED PROPERTY: to exchange with any
person any of the Mortgaged Property for any other
property whether of equal value or not;
(i) EMPLOY OR DISCHARGE: to employ or discharge any
person as an employee, contractor, agent or
professional advisor for any of the purposes of this
deed;
(j) DELEGATE: to delegate to any person any Power of the
Receiver;
(k) PERFORM OR ENFORCE DOCUMENTS: to observe, perform,
enforce, exercise or refrain from exercising any
right, power, authority, discretion or remedy of the
Mortgagor under, or otherwise obtain the benefit of:
(1) any document, agreement or right which
attaches to or forms part of the Mortgaged
Property; and
(2) any document or agreement entered into in
exercise of any Power by the Receiver;
(l) RECEIPTS: to give receipts for all moneys and other
assets which may come into the hands of the Receiver;
(m) TAKE PROCEEDINGS: to commence, discontinue,
prosecute, defend, settle or compromise in its name
or the name or on behalf of the Mortgagor, any
proceedings including, but not limited to,
proceedings in relation to any insurance in respect
of any of the Mortgaged Property;
(n) INSOLVENCY PROCEEDINGS: to make any debtor bankrupt,
wind-up any company, corporation or other entity and
do all things in relation to any bankruptcy or
winding-up which the Receiver thinks necessary or
desirable including, but not limited to, attending
and voting at creditors' meetings and appointing
proxies for those meetings;
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(o) EXECUTE DOCUMENTS: to enter into and execute any
document or agreement in the name of the Receiver or
the name or on behalf of the Mortgagor for any of the
purposes of this deed;
(p) RIGHTS: to exercise any right, power, authority,
discretion or remedy in respect of the Mortgaged
Property including, but not limited to:
(1) any voting right or power;
(2) the acceptance of any rights issue;
(3) proving in any liquidation, scheme of
arrangement or other composition for or
arrangement with a member or any secured or
unsecured creditor and whether or not under
an order of the court;
(4) consenting on behalf of the Mortgagor in
respect of the proof referred to in clause
6.3(p)(3); and
(5) receiving all Distributions;
(q) ABILITY OF MORTGAGOR: to do anything the Mortgagor
could do in respect of the Mortgaged Property; and
(r) INCIDENTAL POWER: to do anything necessary or
incidental to the exercise of any Power of the
Receiver.
6.4 NATURE OF RECEIVER'S POWERS
The Powers of the Receiver are to be construed independently
and none limits the generality of any other. Any dealing under
any Power of the Receiver will be on the terms and conditions
the Receiver thinks fit.
6.5 STATUS OF RECEIVER AFTER COMMENCEMENT OF WINDING UP
(a) The power to appoint a Receiver under clause 6.1 may
be exercised even if at the time an Enforcement Event
occurs or, at the time when a Receiver is appointed,
an order has been made or a resolution has been
passed for the winding-up of the Mortgagor.
(b) If for any reason, including, but not limited to
operation of law, a Receiver:
(1) appointed in the circumstances described in
clause 6.5(a); or
(2) appointed at any other time,
ceases to be the agent of the Mortgagor upon or by
virtue of, or as a result of, an order being made or
a resolution being passed for the winding-up of the
Mortgagor, the Receiver immediately becomes the agent
of the Security Trustee. In such case, the Receiver
will be the agent of the Security Trustee in its
capacity as Security Trustee only, and despite
anything else in this deed or at law, the Security
Trustee in its personal capacity is not responsible
for any negligent act or omission of the Receiver.
6.6 POWERS EXERCISABLE BY THE SECURITY TRUSTEE
(a) Whether or not a Receiver may be appointed under
clause 6.1, the Security Trustee may, on or after the
occurrence of an Enforcement Event and
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without giving notice to any person, exercise any
Power of the Receiver in addition to any Power of the
Security Trustee.
(b) The exercise of any Power by the Security Trustee,
Delegate, Receiver or Attorney does not cause or deem
the Security Trustee, Delegate, Receiver or Attorney:
(1) to be a mortgagee in possession;
(2) to account as mortgagee in possession; or
(3) to be answerable for any act or omission for
which a mortgagee in possession is liable.
6.7 SET-OFF
The Mortgagor authorises the Security Trustee (but the
Security Trustee shall not be obliged to exercise such right),
after the occurrence of an Enforcement Event which is
continuing, to set off against the Secured Obligations any
amount or other obligation (contingent or otherwise) owing by
the Security Trustee to the Mortgagor.
6.8 NOTICE OF EXERCISE OF RIGHTS
The Security Trustee, Receiver or Attorney is not required:
(a) to give notice of the Mortgage or any Collateral
Security to any debtor or creditor of the Mortgagor
or to any other person;
(b) to enforce payment of any money payable to the
Mortgagor including, but not limited to, any of the
debts or monetary liabilities charged by this deed or
by any Collateral Security; or
(c) to obtain the consent of the Mortgagor to any
exercise of a Power.
6.9 TERMINATION OF RECEIVERSHIP AND POSSESSION
The Security Trustee may, at any time, terminate the
appointment of a Receiver and may, at any time, give up
possession of the Mortgaged Property, without incurring any
liability to the Mortgagor.
7 APPLICATION AND RECEIPTS OF MONEY
7.1 ORDER OF APPLICATION
At any time after this Mortgage is enforceable, all money
received by the Security Trustee, any Delegate, Receiver,
Attorney or any other person acting on their behalf under this
deed or any Collateral Security will be applied in accordance
with the terms of the Security Trust and Intercreditor Deed.
7.2 MONEY ACTUALLY RECEIVED
In applying any money towards satisfaction of the Secured
Obligations the Mortgagor is to be credited only with so much
of the money which is available for that purpose (after
deducting any GST imposed) and which is actually received by
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the Security Trustee, Delegate, Receiver or Attorney. The
credit dates from the time of receipt.
7.3 NOTICE OF A SUBSEQUENT ENCUMBRANCE
(a) If the Security Trustee receives actual or
constructive notice of a subsequent Encumbrance, the
Security Trustee:
(1) may open a new account in the name of the
Mortgagor in its books; or
(2) is regarded as having opened a new account
in the name of the Mortgagor in its books,
on the date it received or was regarded as having
received notice of the subsequent Encumbrance.
(b) From the date on which that new account is opened or
regarded as opened:
(1) all payments made by the Mortgagor to the
Security Trustee; and
(2) all financial accommodation and advances to
the Mortgagor,
are or are regarded as credited and debited, as the
case may be, to the new account.
(c) The payments by the Mortgagor under clause 7.3(b)
must be applied:
(1) first, in reduction of the debit balance, if
any, in the new account; and
(2) second, if there is no debit balance in the
new account, in reduction of the Secured
Obligations which have not been debited or
regarded as debited to the new account.
7.4 SECURITY TRUSTEE'S RECEIPTS
(a) The receipt of any Officer of the Security Trustee or
any Delegate for any money payable to or received by
the Security Trustee under this deed exonerates the
payer from all liability to enquire whether any of
the Secured Obligations have become payable.
(b) Every receipt of an Officer of the Security Trustee
effectually discharges the payer from:
(1) any future liability to pay the amount
specified in the receipt; and
(2) being concerned to see to the application
of, or being answerable or accountable for
any loss or misapplication of, the amount
specified in the receipt.
7.5 CONVERSION OF CURRENCIES ON APPLICATION
In making an application under clause 7.1, the Security
Trustee, Delegate, Receiver or Attorney may itself or through
its bankers purchase one currency with another, whether or not
through an intermediate currency, whether spot or forward, in
the manner and amounts and at the times it thinks fit.
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7.6 AMOUNTS PAYABLE ON DEMAND
If any Secured Obligations is not expressed in a Relevant
Document or elsewhere to be payable on a specified date, that
amount is payable by the Mortgagor on demand by the Security
Trustee.
8 POWER OF ATTORNEY
8.1 APPOINTMENT OF ATTORNEY
In consideration of the Security Trustee entering into the
Relevant Documents, the Mortgagor irrevocably appoints the
Security Trustee, each Delegate, each Receiver and each
Officer of the Security Trustee and the Delegates severally
its Attorney and in its name, on its behalf and as its acts
and deed to execute, deliver and perfect all documents and do
all things which the Attorney may consider to be required or
desirable for:
(a) carrying out any obligation impose on the Mortgagor
by this deed (including the execution and delivery of
any notices, deeds, charges, assignments or other
security and any transfers of the Mortgaged
Property);
(b) enabling the Security Trustee, each Delegate and any
Receiver to exercise, or delegate the exercise of,
any of the rights, powers and authorities conferred
on them by or pursuant to this deed or any Collateral
Security or by law (including, after the occurrence
of an Enforcement Event, the exercise of any right of
a legal or beneficial owner of the Mortgaged
Property).
8.2 DELEGATION AND SUBSTITUTION
The Attorney may, at any time, for any of the purposes in
clause 8.1, appoint or remove any substitute or delegate or
sub-attorney.
8.3 RATIFICATION
The Mortgagor shall ratify and confirm all things done and all
documents executed by any Attorney in the exercise or
purported exercise of all or any of his powers.
8.4 INDEMNITY
The Mortgagor shall indemnify the Attorney and keep the
Attorney indemnified against any and all costs, claims and
liabilities which the Attorney may incur as a result of
anything done by the Attorney in the exercise of any of the
powers conferred, or purported to be conferred, on him or her
by this deed unless such costs, claim or liability arises as a
result of the negligence or wilful misconduct of the Attorney.
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9 PROTECTION
9.1 PROTECTION OF THIRD PARTIES
(a) No person dealing with the Security Trustee,
Receiver, any Delegate or Attorney is:
(1) bound to enquire whether:
(A) the Mortgage has become
enforceable;
(B) the Receiver or Attorney is duly
appointed; or
(C) any Power has been properly or
regularly exercised; or
(2) affected by express notice that the exercise
of any Power was unnecessary or improper.
(b) The irregular or improper exercise of any Power is,
as regards the protection of any person, regarded as
authorised by the Mortgagor and this deed, and is
valid.
9.2 PROTECTION OF THE SECURITY TRUSTEE, RECEIVER AND ATTORNEY
(a) The Security Trustee, Receiver, any Delegate or
Attorney is not liable for any loss or damage
including, but not limited to, consequential loss or
damage arising directly or indirectly from:
(1) any omission or delay in the exercise or
non-exercise of any Power; or
(2) the neglect, default or dishonesty of any
manager, Officer, employee, agent,
accountant, auctioneer or solicitor of the
Mortgagor, the Receiver, any Delegate or
Attorney.
(b) Clause 9.2(a) does not apply:
(1) in respect of the Security Trustee, to any
loss or damage which arises from the wilful
default, fraud or gross negligence of the
Security Trustee; and
(2) in respect of a Receiver or Attorney, to any
loss or damage which arises from the wilful
default, fraud or gross negligence of the
Receiver or Attorney.
10 TAX, COSTS, EXPENSES, INDEMNITY AND RELEASE
10.1 TAX
The Mortgagor shall pay, promptly on demand of the Security
Trustee all stamp, registration, notarial and other similar
Taxes or fees paid or payable by the Security Trustee in
connection with any action taken or contemplated by or on
behalf of the Security Trustee for perfecting, enforcing,
releasing, cancelling, reassigning or resolving any doubt
concerning, or for any other purpose in relation to the
Mortgage or any Collateral Security, any amendment thereto,
any transfer and/or assignment of the rights and/or
obligations under the same or the
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Encumbrance created or intended to be created in respect of
the Mortgaged Property and shall, from time to time, indemnify
the Security Trustee promptly on demand against any
liabilities, costs, claims and expenses resulting from any
failure to pay by the Mortgagor or any delay by the Mortgagor
in paying any such Taxes or fees.
10.2 GST
(a) To the extent that any supply made under or in
connection with this deed is a taxable supply, the
recipient must pay, in addition to the consideration
to be provided under this deed for that supply
(unless it expressly includes GST) an amount
(ADDITIONAL AMOUNT) equal to the amount of that
consideration (or its GST exclusive market value)
multiplied by the rate at which GST is imposed in
respect of the supply.
(b) Terms used in this clause which are defined in the
GST Act have the same meaning in this clause.
(c) If either party is entitled under this deed to be
reimbursed or indemnified by the other party for a
cost or expense incurred in connection with this
deed, the reimbursement or indemnity payment must not
include any GST component of the cost or expense for
which an input tax credit may be claimed by the party
being reimbursed or indemnified, or by its
representative member.
10.3 EXPENSES
The Mortgagor shall, from time to time and promptly on demand
by the Security Trustee reimburse to the Security Trustee all
costs and expenses (including legal fees) on a full indemnity
basis together with any applicable GST incurred by the
Security Trustee and any Delegate (provided that in relation
to paragraph (a) of this Clause 10.3, such costs and expenses
must be properly incurred) in connection with:
(a) the execution, release and discharge of this deed and
the Encumbrance created or intended to be created in
respect of the Mortgaged Property and the perfection
of the Encumbrance contemplated in this deed or in
any such documents or forming part of the Encumbrance
created or intended to be created in respect of the
Mortgaged Property;
(b) the actual or contemplated exercise, preservation
and/or enforcement of any of the rights, powers and
remedies of, or the performance of the duties and
obligations of, the Security Trustee or any Delegate,
or any amendment or waiver in respect of this deed;
(d) the foreclosure of any Mortgaged Property; and
(e) the preservation and/or enforcement of the
Encumbrance created or intended to be created in
respect of the Mortgaged Property,
which shall carry interest from the date of such demand until
so reimbursed at the rate and on the basis as mentioned in
clause 4.12.
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10.4 CURRENCY INDEMNITY
If any sum (a "SUM") owing by the Mortgagor under this deed or
any order or judgment given or made in relation to this deed
has to be converted from the currency (the "FIRST CURRENCY")
in which such Sum is payable into another currency (the
"SECOND CURRENCY") for the purpose of:
(a) making or filing a claim or proof against the
Mortgagor;
(b) obtaining an order or judgment in any court or other
tribunal;
(c) enforcing any order or judgment given or made in
relation to this deed; or
(d) applying the Sum in satisfaction of any of the
Secured Obligations,
the Mortgagor shall indemnify the Security Trustee from and
against any loss suffered or incurred as a result of any
discrepancy between the rate of exchange used for such purpose
to convert such Sum from the First Currency into the Second
Currency and the rate or rates of exchange available to the
Security Trustee at the time of such receipt of such Sum.
10.5 GROSS UP
All payments to be made to the Security Trustee, any Delegate
and/or Receiver under this deed or any Collateral Security
shall be made free and clear of and without set-off or
deduction for or on account of Tax unless the Mortgagor is
required to make such payment subject to the deduction or
withholding of Tax, in which case the sum payable by the
Mortgagor in respect of which such deduction or withholding is
required to be made shall be increased to the extent necessary
to ensure that, after the making of such deduction or
withholding, the person on account of whose liability to Tax
such deduction or withholding has been made receives and
retains (free from any liability in respect of any such
deduction or withholding) a net sum equal to the sum which it
would have received and so retained had no such deduction or
withholding been made or required to be made.
10.6 RELEASE OF SECURITY
The Security Trustee shall, at the cost of the Mortgagor,
release and cancel the security constituted by this deed in
accordance with the terms and subject to the conditions and
circumstances set out in the Security Trust and Intercreditor
Deed and without recourse to, or any representation or
warranty by, the Security Trustee or any of its nominees.
11 SAVING PROVISIONS
11.1 STATUTORY POWERS
(a) The powers of the Security Trustee under this deed or
any Collateral Security are in addition to any powers
the Security Trustee has under applicable law.
(b) To the extent not prohibited by law, before enforcing
this deed or any Collateral Security, or exercising
any Power, the Security Trustee is not required to
give any notice or allow the expiration of any time
to any person.
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11.2 CONTINUING SECURITY
The Mortgage is a continuing security despite any settlement
of account or any other thing until the Security Trustee has
given a discharge of the Mortgage in respect of all the
Mortgaged Property in accordance with the Relevant Documents.
11.3 NO MERGER OF SECURITY
(a) Nothing in this deed merges, extinguishes, postpones,
lessens or otherwise prejudicially affects:
(1) any Encumbrance in favour of the Security
Trustee at any time;
(2) any indemnity in favour of the Security
Trustee contained in any Relevant Document;
or
(3) any right, power, authority, discretion or
remedy which the Security Trustee may have
against the Mortgagor or any other person at
any time.
(b) No other Encumbrance including, but not limited to,
any Collateral Security, held by the Security Trustee
in any way prejudicially affects any right, Power,
authority, discretion or remedy of the Security
Trustee under this deed.
11.4 EXCLUSION OF MORATORIUM
To the extent not excluded by law, a provision of any
legislation which at any time directly or indirectly:
(a) lessens or otherwise varies or affects in favour of
the Mortgagor any obligations under this deed or any
Collateral Security; or
(b) stays, postpones or otherwise prevents or
prejudicially affects the exercise by the Security
Trustee, Receiver or Attorney of any Power,
is negatived and excluded from this deed and any Collateral
Security and all relief and protection conferred on the
Mortgagor by or under that legislation is also negatived and
excluded.
11.5 CONFLICT
Where any right, power, authority, discretion or remedy of the
Security Trustee, any Delegate, Receiver or Attorney under
this deed or any Collateral Security is inconsistent with the
powers conferred by applicable law then, to the extent not
prohibited by that law, the powers conferred by applicable law
are regarded as negatived or varied to the extent of the
inconsistency.
11.6 CONSENT OF SECURITY TRUSTEE
Any Power which may be exercised or any determination which
may be made hereunder or under any Collateral Security by the
Security Trustee or any Receiver may, subject to the terms and
conditions of this deed and the Security Trust and
Intercreditor Deed, be exercised or made in its absolute and
unfettered discretion without any obligation to give reasons.
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11.7 DELEGATION
Each of the Security Trustee and any Receiver shall have full
power to delegate (either generally or specifically) the
Powers conferred on it by this deed (including the power of
attorney) or any Collateral Security on such terms and
conditions as it shall see fit which delegation shall not
preclude either the subsequent exercise of such Power by the
Security Trustee or the Receiver itself or any subsequent
delegation or revocation thereof.
11.8 COMPLETION OF BLANK SECURITIES
At any time after the Mortgage has become enforceable, the
Security Trustee, any Delegate, Receiver, Attorney or any
Officer of the Security Trustee may complete, in favour of the
Security Trustee, any appointee of the Security Trustee or any
purchaser, any instrument executed in blank by or on behalf of
the Mortgagor and deposited with the Security Trustee as
security under this deed or any Collateral Security.
11.9 PRINCIPAL OBLIGATIONS
The Mortgage and each Collateral Security is:
(a) a principal obligation and is not ancillary or
collateral to any other Encumbrance (other than
another Collateral Security) or other obligation
however created; and
(b) independent of, and unaffected by, any other
Encumbrance or other obligation however created which
the Security Trustee may hold at any time in respect
of the Secured Obligations.
11.10 NO OBLIGATION TO MARSHAL
The Security Trustee is not required, before it enforces the
Mortgage, to marshal or to enforce or apply under, or
appropriate, recover or exercise:
(a) any Encumbrance or Collateral Security held, at any
time, by the Security Trustee; or
(b) any moneys or assets which the Security Trustee, at
any time, holds or is entitled to receive.
11.11 NON-AVOIDANCE
If any payment by the Mortgagor to the Security Trustee is at
any time avoided for any reason including, but not limited to,
any legal limitation, disability or incapacity of or affecting
the Mortgagor or any other thing, and whether or not:
(a) any transaction relating to the Secured Obligations
was illegal, void or substantially avoided; or
(b) any thing was or ought to have been within the
knowledge of the Security Trustee,
the Mortgagor:
(c) as an additional and independent obligation,
indemnifies the Security Trustee against that avoided
payment; and
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(d) acknowledges that any liability of the Mortgagor
under this deed and any Power is the same as if that
payment had not been made.
11.12 INCREASE IN FINANCIAL ACCOMMODATION
Any Secured Creditor may at any time increase the financial
accommodation provided under any Relevant Document or
otherwise provide further financial accommodation.
12 THIRD PARTY PROVISIONS
12.1 INDEPENDENT OBLIGATIONS
This deed is enforceable against the Mortgagor:
(a) without first enforcing any Collateral Security;
(b) whether or not the Security Trustee has:
(1) made demand upon any Obligor other than the
Mortgagor;
(2) given notice to any Obligor (other than the
Mortgagor) or any other person in respect of
any thing; or
(3) taken any other steps against any Obligor
(other than the Mortgagor) or any other
person;
(c) whether or not any Secured Obligations are due; and
(d) despite the occurrence of any event described in
clause 12.2.
12.2 UNCONDITIONAL NATURE OF OBLIGATIONS
(a) The Mortgage and the obligations of the Mortgagor
under the Relevant Documents are absolute, binding
and unconditional in all circumstances.
(b) The Mortgage and the obligations of the Mortgagor
under the Relevant Documents are not released or
discharged or otherwise affected by anything which
but for this provision might have that effect,
including, but not limited to:
(1) the grant to any Obligor or any other person
of any time, waiver, covenant not to sue or
other indulgence;
(2) the release (including without limitation a
release as part of any novation) or
discharge of any Obligor or any other
person;
(3) the cessation of the obligations, in whole
or in part, of any Obligor or any other
person under any Relevant Document or any
other document or agreement;
(4) the liquidation of any Obligor or any other
person;
(5) any arrangement, composition or compromise
entered into by the Security Trustee, any
Obligor or any other person;
(6) any Relevant Document or any other document
or agreement being in whole or in part
illegal, void, voidable avoided,
unenforceable or otherwise of limited force
or effect;
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(7) any extinguishment, failure, loss, release,
discharge, abandonment, impairment,
compound, composition or compromise, in
whole or in part of any Relevant Document or
any other document or agreement;
(8) any Collateral Security being given to the
Security Trustee by any Obligor or any other
person;
(9) any alteration, amendment, variation,
supplement, renewal or replacement of any
Relevant Document or any other document or
agreement;
(10) any moratorium or other suspension of any
Power;
(11) the Security Trustee, any Delegate, Receiver
or Attorney exercising or enforcing,
delaying or refraining from exercising or
enforcing, or being not entitled or unable
to exercise or enforce any Power;
(12) the Security Trustee obtaining a judgment
against any Obligor or any other person for
the payment of any of the Secured
Obligations;
(13) any transaction, agreement or arrangement
that may take place with the Security
Trustee, any Obligor or any other person;
(14) any payment to the Security Trustee, any
Delegate, Receiver or Attorney, including
any payment which at the payment date or at
any time after the payment date is, in whole
or in part, illegal, void, voidable, avoided
or unenforceable;
(15) any failure to give effective notice to any
Obligor or any other person of any default
under any Relevant Document or any other
document or agreement;
(16) any legal limitation, disability or
incapacity of any Obligor or of any other
person;
(17) any breach of any Relevant Document or any
other document or agreement;
(18) the acceptance of the repudiation of, or
termination of, any Relevant Document or any
other document or agreement;
(19) any Secured Obligations being irrecoverable
for any reason;
(20) any disclaimer by any Obligor or any other
person of any Relevant Document or any other
document or agreement;
(21) any assignment, novation, assumption or
transfer of, or other dealing with, any
Powers or any other rights or obligations
under any Relevant Document or any other
document or agreement;
(22) the opening of a new account of any Obligor
with the Security Trustee or any transaction
on or relating to the new account;
(23) any prejudice (including, but not limited
to, material prejudice) to any person as a
result of:
(A) any thing done, or omitted by the
Security Trustee, any Obligor or
any other person;
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(B) the Security Trustee, a Delegate,
Receiver, Attorney or any other
person selling or realising any
property the subject of a
Collateral Security at less than
the best price;
(C) any failure or neglect by the
Security Trustee, a Delegate,
Receiver, Attorney or any other
person to recover the Secured
Obligations from any Obligor or by
the realisation of any property the
subject of a Collateral Security;
or
(D) any other thing;
(24) the receipt by the Security Trustee of any
dividend, distribution or other payment in
respect of any liquidation;
(25) any other act, omission, matter or thing
whatsoever whether negligent or not.
(c) Clauses 12.2(a) and (b) apply irrespective of:
(1) the consent or knowledge or lack of consent
or knowledge, of the Security Trustee, any
Obligor or any other person of any event
described in clause 12.2(b); or
(2) any rule of law or equity to the contrary.
12.3 NO COMPETITION
(a) Subject to the terms and conditions of the Security
Trust and Intercreditor Deed, until the Secured
Obligations have been fully and irrevocably paid and
the Mortgage has been finally discharged in
accordance with the terms of the Security Trust and
Intercreditor Deed, the Mortgagor is not entitled to,
except (with respect only to sub-paragraphs (3) to
(7) below) as not expressly prohibited under the
Indentures:
(1) be subrogated to the Security Trustee;
(2) claim or receive the benefit of:
(A) any Encumbrance, Guarantee
(including, but not limited to, any
Relevant Document) or other
document or agreement of which the
Security Trustee has the benefit;
(B) any moneys held by the Security
Trustee; or
(C) any Power;
(3) subject to clause 12.3(b), either directly
or indirectly prove in, claim or receive the
benefit of any distribution, dividend or
payment arising out of or relating to the
liquidation of any Obligor;
(4) make a claim or exercise or enforce any
right, power or remedy (including, but not
limited to, under an Encumbrance or
Guarantee or by way of contribution) against
any Obligor;
(5) accept, procure the grant of, or allow to
exist any Encumbrance in favour of the
Mortgagor from any Obligor;
(6) exercise or attempt to exercise any right of
set-off against, nor realise any Encumbrance
taken from, any Obligor; or
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(7) raise any defence or counterclaim in
reduction or discharge of its obligations
under the Relevant Documents.
(b) If required by the Security Trustee, the Mortgagor
must prove in any liquidation of a Obligor for all
moneys owed to the Mortgagor.
(c) All moneys recovered by the Mortgagor from any
liquidation or under any Encumbrance from a Obligor
must be received and held in trust by the Mortgagor
for the Security Trustee to the extent of the
unsatisfied liability of the Mortgagor under the
Relevant Documents.
(d) The Mortgagor must not do or seek, attempt or purport
to do anything referred to in clause 12.3(a).
13 GENERAL
13.1 CONFIDENTIAL INFORMATION
The Security Trustee may, for the purpose of exercising any
Power, disclose to any person any documents or records of, or
information about, the Mortgagor, the Mortgaged Property or
the Mortgagor's business or affairs, whether or not
confidential and whether or not the disclosure would be in
breach of any law or of any duty owed to the Mortgagor.
13.2 PERFORMANCE BY SECURITY TRUSTEE OF THE MORTGAGOR'S OBLIGATIONS
If the Mortgagor defaults in fully and punctually performing
any obligation contained or implied in any Relevant Document,
the Security Trustee may, without prejudice to any Power, do
all things necessary or desirable, in the opinion of the
Security Trustee, to make good or attempt to make good that
default to the satisfaction of the Security Trustee.
13.3 MORTGAGOR TO BEAR COST
Any thing which must be done by the Mortgagor under this deed,
whether or not at the request of the Security Trustee or any
of its Delegates, is to be done at the cost of the Mortgagor.
13.4 NOTICES
Each communication to be made under this deed shall be made
and delivered in accordance with the provisions of the
Security Trust and Intercreditor Deed.
13.5 GOVERNING LAW AND JURISDICTION
(a) This deed is governed by the laws of New South Wales.
(b) The Mortgagor irrevocably submits to the
non-exclusive jurisdiction of the courts of New South
Wales.
13.6 PROHIBITION AND ENFORCEABILITY
(a) Any provision of, or the application of any provision of, any
Relevant Document or any Power which is prohibited in any
jurisdiction is, in that jurisdiction, ineffective only to the
extent of that prohibition.
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(b) Any provision of, or the application of any provision
of, any Relevant Document which is void, illegal or
unenforceable in any jurisdiction does not affect the
validity, legality or enforceability of that
provision in any other jurisdiction or of the
remaining provisions in that or any other
jurisdiction.
13.7 WAIVERS
(a) Waiver of any right arising from a breach of this
deed or of any Power arising upon default under this
deed or upon the occurrence of an Enforcement Event
must be in writing and signed by the party granting
the waiver.
(b) A failure or delay in exercise, or partial exercise,
of:
(1) a right arising from a breach of this deed
or the occurrence of an Enforcement Event;
or
(2) a Power created or arising upon default
under this deed or upon the occurrence of an
Enforcement Event,
does not result in a waiver of that right or Power.
(c) A party is not entitled to rely on a delay in the
exercise or non-exercise of a right or Power arising
from a breach of this deed or on a default under this
deed or on the occurrence of an Enforcement Event as
constituting a waiver of that right or Power.
(d) A party may not rely on any conduct of another party
as a defence to exercise of a right or Power by that
other party.
(e) This clause may not itself be waived except by
writing.
13.8 VARIATION
A variation of any term of this deed must be in writing and
signed by the parties.
13.9 CUMULATIVE RIGHTS
The Powers are cumulative and do not exclude any other right,
power, authority, discretion or remedy of the Security
Trustee, Receiver or Attorney.
13.10 ASSIGNMENT
(a) The Security Trustee may assign and transfer all or
any of its rights and obligations under this deed and
each Collateral Security, without the consent of the
Mortgagor, to any successor or replacement security
trustee under, and in accordance with the Security
Trust and Intercreditor Deed. The Security Trustee
shall be entitled to disclose such information
concerning the Mortgagor and this deed as the
Security Trustee considers appropriate to any actual
or proposed direct or indirect successor or to any
person to whom information may be required to be
disclosed by any applicable law.
(b) The Mortgagor must not assign any of its rights under
this deed or any Collateral Security without the
prior written consent of the Security Trustee.
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13.11 ATTORNEYS
Each of the attorneys executing this deed states that the
attorney has no notice of the revocation of the power of
attorney appointing that attorney.
13.12 COUNTERPARTS
This deed may be executed in any number of counterparts and
the result shall be the same as it would be if the signatures
on the counterparts were on a single copy of this deed. Any
party may enter into this deed by signing any such
counterpart.
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EXECUTED as a DEED )
by X. XXXXXX ) X. XXXXXX
acting as attorney-in-fact )
for and on behalf of )
ASSOCIATED ELECTRICAL )
INDUSTRIES LIMITED )
in the presence of: )
Signature of witness: X.X. XXXXXX
Name of witness: X.X. XXXXXX
Address: Xxxxx & Xxxxx
One New Change
London EC4M 9QQ
Occupation: Trainee Solicitor
SIGNED SEALED AND DELIVERED for
THE LAW DEBENTURE TRUST CORPORATION p.l.c. by:
:
XXXXXX XXXXX-XXXX X.X. XXXXX
Director Director
XXXXXX XXXXX-XXXX X.X. XXXXX
Name (please print) Name (please print)
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