STOCK PLEDGE
DEED dated 1997
BETWEEN SIZZLER INTERNATIONAL, INC., a Delaware Corporation, United States
of America C/- Sizzler Australia Pty Ltd ACN 010 060 876 of 16
Edmondstone Street, Newmarket, Brisbane, Australia
(`CHARGOR')
AND WESTPAC BANKING CORPORATION ARBN 007 457 141 of 260 Queen Street,
Brisbane, Australia
(`FINANCIER')
1. INTERPRETATION
2.1 DEFINITIONS
In this document:
`ATTORNEY' means an attorney appointed under a Relevant Agreement.
`AUTHORISED OFFICER' means a person holding or acting in the office of
director, chief executive or secretary, or whose title includes the word
`Manager' or `Director'.
`BUSINESS DAY' means a day on which banks (as defined in the Banking Act
1959 (Cth)) are open for general banking business in Brisbane, excluding
Saturdays and Sundays and public holidays.
`CHARGE' means the charge over, and security interest in the Charged
Property created under this document.
`CHARGED PROPERTY' means:
(a) one thousand (1,000) shares of the common stock of Collins Foods
International, Pty Ltd ('CFI'), represented by Certificate Number 2;
(b) one hundred (100) shares of the common stock of Sizzler
International Marks, Inc. (`SIM'), represented by Certificate
Number 1;
(c) all other shares of capital stock of whatever class of CFI and SIM,
that are now or hereafter owned by the Chargor, together with the
certificates representing such shares;
(d) all shares, securities, moneys or property representing any
dividends, distributions, warrants, rights and options relating to
such shares;
(e) without affecting the provisions of any Relevant Agreement
prohibiting a consolidation or merger, in the event of any
consolidation or merger of CFI or SIM, all shares of each class of
capital stock of the successor corporation,
together with the certificates representing such shares; and
(f) all proceeds of the foregoing.
`COLLATERAL SECURITY' means a Guarantee, Security Interest or negotiable
instrument held or given, whether before or after this document is
executed, as security for or otherwise in connection with the Secured
Money.
`DEBTOR' means a Customer or Guarantor as defined in the Negative Pledge.
`EVENT OF DEFAULT' has the meaning given to it in the Negative Pledge and
includes the Events of Default contained in clauses 13(a)(iii) (without the
word `other' in the first line), (b), (d), (e) (with respect to the first
sentence only), (g) (with respect to the first sentence only) and (p) of
the Negative Pledge as if the Chargor were a Relevant Company.
`GUARANTEE' means a guarantee, indemnity, letter of credit, letter of
comfort or any other obligation (whatever it is called and whatever its
nature) by which a person is responsible for another person's obligation or
debt.
`LIQUIDATION' includes official management, receivership, compromise,
arrangement, amalgamation, administration, reconstruction, winding up,
dissolution, assignment for the benefit of creditors, arrangement or
compromise with creditors, bankruptcy or death.
`NEGATIVE PLEDGE' means the Unlimited Cross Guarantee and Indemnity and
Negative Pledge with Financial Ratio Covenants dated on or around the date
of this document between the Financier, Collins Foods International Pty Ltd
and others.
`PERMITTED SECURITY INTEREST' means:
(a) a Security Interest which the Financier has consented to. It does
not include a Security Interest which the Financier has consented to
on one or more conditions if those conditions are not complied with;
and
(b) a lien or charge on the Charged Property arising by operation of law
in the ordinary course of the Chargor's ordinary business. It does
not include a lien or charge which secures overdue debts.
`POTENTIAL EVENT OF DEFAULT' means any event, thing or circumstance which
with the giving of notice or passage of time or both would become an Event
of Default.
`PUBLIC AUTHORITY' means the Crown, a government, a minister of a
government, a government department, a statutory corporation, or a semi-
government or judicial entity.
`RECEIVER' means a receiver or receiver and manager appointed under this
document. When two or more persons are appointed, the expression
`Receiver' refers to each of those persons severally as well as to two or
more of them jointly.
`RECORDS' means all the information which relates in any way to a specified
person's business or any transaction entered into by the person, whether
the information is recorded electronically, magnetically or otherwise.
`RELEVANT AGREEMENT' means:
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(a) this document; and
(b) a Collateral Security; and
(c) an agreement between:
(i) the Financier and the Chargor; or
(ii) the Financier and a Debtor; or
(iii) the Financier and any combination of the Chargor and one or
more Debtors;
that relates to the Secured Money or another Relevant Agreement or
contains terms on which the Secured Money remains outstanding; and
(d) a document that the Chargor and the Financier agree is a Relevant
Agreement.
`SECURED MONEY' means all money that the Chargor or a Debtor is liable to
pay to the Financier at or after the date of this document on any account
and in any way whatever, and whether:
(a) the Chargor or Debtor is liable alone or together with another person;
or
(b) the Chargor or Debtor is liable as principal debtor, surety, partner,
trustee, beneficiary or otherwise; or
(c) the relevant liability:
(i) is actual or contingent, ascertained or unascertained, fixed or
fluctuating;
(ii) is in respect of principal, interest, Guarantee obligations,
purchase obligations, fees or damages; or
(iii) is in dollars, another currency or a combination of currencies,
or is of any other character.
Without limitation, `Secured Money' includes:
(d) all Taxes and all reasonable costs and expenses (including, but not
limited to, legal costs and expenses on a full indemnity basis) which
the Financier or a Receiver or Attorney pays, or is liable to pay, in
connection with:
(i) a Relevant Agreement, or negotiating, preparing, completing,
registering or stamping a Relevant Agreement; or
(ii) maintaining, preserving or protecting the Charged Property; or
(iii) surveying, valuing, inspecting or reporting on the Charged
Property; or
(iv) obtaining or attempting to obtain payment of the Secured Money
from
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any person; or
(v) protecting, enforcing or exercising a right, power or remedy of
the Financier or a Receiver or Attorney under or in connection
with a Relevant Agreement; or
(vi) an Event of Default or Potential Event of Default; or
(vii) the Financier providing financial accommodation to or at the
request of the Chargor; or
(viii) a receipt or payment of money under, or a transaction
contemplated by, a Relevant Agreement; and
(e) interest on all of the foregoing at the rates specified in the
Relevant Agreements. If no rate is specified, the rate is as
reasonably determined by the Financier. Interest accrues from day to
day, computed from the time:
(i) the Secured Money became owing (whether or not it is
immediately payable); or
(ii) in relation to costs and expenses, the relevant amount was
incurred.
Interest on Secured Money may be capitalised monthly or at the times
agreed between the parties. It then bears interest on itself.
Interest continues to be payable despite the Winding Up of any person,
or any judgement obtained against any person.
`SECURITY INTEREST' means a mortgage, pledge, lien, charge, preferential
right, trust arrangement, agreement or other arrangement given, arising or
created as security.
`TAX' includes a tax, levy, duty or charge (and associated penalty or
interest) imposed by a Public Authority. It includes income, withholding,
stamp and transaction taxes and duties but does not include income tax on
the overall net income of the Financier.
`WINDING UP' includes:
(a) dissolution, liquidation, provisional liquidation and bankruptcy; and
(b) a procedure which is equivalent or analogous in any jurisdiction.
3.1 OTHER EXPRESSIONS
In this document, unless the contrary intention appears:
(a) the singular includes the plural and vice versa;
(b) other grammatical forms of defined words or expressions have
corresponding meanings;
(c) if this document binds two or more persons, it binds them severally
and jointly;
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(d) a reference to a party to this document includes that party's
successors and permitted assigns;
(e) a reference to a document or agreement includes that document or
agreement as novated, altered or replaced;
(f) when two or more persons are named as Chargor, the term `Chargor' is a
reference to each of them alone and also to any two or more of them
together. The same applies to the term `Debtor';
(g) a reference to any thing includes the whole or any part of that thing
and a reference to a group of things or persons includes each thing or
person in that group;
(h) `dollars' and `$' refer to Australian currency;
(i) words implying natural persons include partnerships, bodies corporate,
associations and Public Authorities;
(j) a reference to any legislation or statutory instrument or regulation
is construed in accordance with the Acts Interpretation Act 1901 (Cth)
or the equivalent State legislation, as applicable.
4. CHARGE
5.1 CREATING THE CHARGE
The Chargor charges, pledges and grants a security interest in the Charged
Property in favour of the Financier as security for the payment of the
Secured Money.
6.1 FIXED CHARGE
The Charge is a fixed charge.
7.1 CONTINUING SECURITY AND DISCHARGING THE CHARGE
The Charge is a continuing security. It remains in effect until the
Financier gives a final discharge to the Chargor. The Chargor is only
entitled to a final discharge if:
(a) all of the Secured Money has been paid; and
(b) the Financier is satisfied that there are no amounts which will
subsequently fall within the description of the Secured Money.
In satisfying itself under paragraph (b), the Financier may consider any
matters it thinks relevant, including (without limitation) the possibility
that a payment to reduce the Secured Money might be repayable, void or
voidable under a law relating to insolvency or protecting creditors.
8.1 FIRST PRIORITY SECURITY INTEREST
The Charge is a first charge. With respect to any Charged Property as to
which the law
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of any state of the United States of America governs the granting,
perfection or effect of perfection of a security interest, the Charge
created hereunder is a first priority perfected security interest.
9. [INTENTIONALLY OMITTED]
10. CHARGOR'S OBLIGATIONS
11.1 POSITIVE OBLIGATIONS
The Chargor must:
(a) pay when due the Taxes assessed, levied or imposed on the Charged
Property (other than those being contested in good faith) or the
Financier in connection with the Charged Property; and
(b) comply with all laws and with the mandatory requirements of any
Public Authority concerning the Charged Property except where the
requirement to do so is being contested in good faith; and
(c) operate each Debtor that it owns, directly or indirectly, in a manner
designed to avoid an Event of Default; and
(d) prosecute and defend (at the Chargor's expense) all legal proceedings
which are advisable, or which the Financier advises the Chargor that
it considers advisable, to avoid a material adverse effect on the
Charged Property; and
(e) do everything necessary to ensure that the Charged Property at all
times includes all of the issued and outstanding shares of capital
stock of Collins Foods International, Pty Ltd. and Sizzler
International Marks, Inc.
12.1 NEGATIVE OBLIGATIONS
The Chargor must not, without the consent of the Financier:
(a) deal with or dispose of the Charged Property; or
(b) permit a Security Interest (other than a Permitted Security Interest)
to affect the Charged Property; or
(c) apply for or obtain money, goods or services from a Public Authority,
fail to pay an amount to a Public Authority (unless the Chargor is
contesting the liability to pay in good faith and has set aside
sufficient reserves to meet the liability) or do anything else which
might lead to a liability or Tax being imposed on the Charged
Property; or
(d) do or allow anything to be done which may (other than in an
immaterial way) prejudice the Financier's security or rights under a
Relevant Agreement.
13.1 OBLIGATIONS CONCERNING CHARGED PROPERTY
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The Chargor must:
(a) immediately deposit with the Financier all certificates, documents of
title or other documents that from time to time represent or evidence
the Charged Property, endorsed in blank by the Chargor by an
effective endorsement;
(b) on demand by the Financier, deposit with it stock powers or transfers
executed in blank by the Chargor;
(c) punctually pay all calls, instalments and other moneys which may at
any time be payable on any of the Charged Property (other than those
being contested in good faith) or which, if unpaid, may result in the
creation of a Security Interest over any of the Charged Property;
(d) promptly notify the Financier in writing when the Chargor becomes
entitled to any of the rights or property referred to in paragraphs
(c) - (f) of the definition of 'Charged Property';
(e) deliver to the Financier, promptly after receipt by the Chargor, a
copy of:
(i) any notice convening a meeting of the holders of any of the
Charged Property; and
(ii) any report, accounts, notice or circular issued to the holders
of any of the Charged Property;
14.1 OBLIGATIONS CONCERNING VOTING RIGHTS AND DIVIDENDS
The Chargor:
(a) may until an Event of Default or Potential Event of Default occurs
exercise voting rights conferred upon it as the holder of any of the
Charged Property, but it must not in doing so permit or cause
anything to occur that would be an Event of Default or Potential
Event of Default or otherwise be inconsistent with the terms of this
document. However, if an Event of Default or Potential Event of
Default occurs, the Chargor may no longer exercise any of those
voting rights, except with the prior written consent of the
Financier; and
(b) may, until an Event of Default occurs and subject to paragraph (a):
(i) acquire any of the rights or property referred to in paragraphs
(c) - (f) of the definition of `Charged Property'; and
(ii) receive and use in the ordinary course of its business cash
dividends payable in relation to the Charged Property.
However, if an Event of Default occurs:
(iii) the Chargor may not do any of the things specified in
paragraphs (i) or (ii) and from then on only the Financier, a
Receiver or Attorney may do those things; and
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(iv) the Chargor must (at its cost) do all things necessary to
enable the Financier, Receiver or Attorney to do the things
specified in paragraphs (i) and (ii); and
(c) must immediately pay to the Financier any money it receives in
connection with the Charged Property (other than dividends referred
to in paragraph (b)(ii)). The Financier may apply that money to
reduce the Secured Money in the manner specified in clause 16.9.
15. CHARGOR'S REPORTING OBLIGATIONS
16.1 NOTICES TO THE FINANCIER
The Chargor must notify the Financier as soon as an Authorised Officer of
the Chargor becomes aware of:
(a) an Event of Default or Potential Event of Default; or
(b) a representation or warranty in any Relevant Agreement becoming
materially false or misleading (giving full details); or
(c) a material requirement or notice of a Public Authority in connection
with the Charged Property and must give the Financier a copy of any
related document it has and full details of all relevant facts known
to the Chargor concerning the requirement or notice; or
(d) any other requirement, notice, order or direction relating to the
Charged Property given to the Chargor and must give to the Financier
a copy of any related document served on the Chargor, giving full
particulars of all relevant facts known to the Chargor.
17. ACCESS TO AND INVESTIGATION OF RECORDS
18.1 GIVING ACCESS TO RECORDS
The Chargor must:
(a) ensure that the Records of the Chargor relating to the Charged
Property are available for inspection at reasonable times by the
Financier and persons acting on the Financier's behalf; and
(b) allow the Financier and persons acting on the Financier's behalf to
inspect and to take copies of or extracts from the Chargor's Records
during business hours and give reasonable assistance to them.
19. BETTER SECURITY AND RIGHTS FOR FINANCIER
20.1 BETTER SECURITY AND RIGHTS
The Chargor must, at the Chargor's cost, do whatever the Financier
reasonably requires to:
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(a) more satisfactorily secure the Charged Property as security to the
Financier for the payment of the Secured Money; or
(b) enable the Financier to better exercise its rights over the Charged
Property,
and must use its best efforts to make anyone else who has an interest in
the Charged Property or claims under or in trust for the Chargor do the
same.
21.1 EXAMPLES
This includes, but is not limited to:
(a) executing a further Security Interest (including a legal mortgage)
over, or other documents relating to, the Charged Property; and
(b) delivering the stock certificates or other title documents
representing or evidencing the Charged Property to the Financier,
endorsed in blank by an effective endorsement, or accompanied by a
stock power or transfer in blank,
in a form reasonably satisfactory to the Financier.
22. REPRESENTATIONS AND WARRANTIES
23.1 The Chargor represents and warrants to the Financier that:
(a) the Chargor was properly incorporated and validly exists; and
(b) the Chargor has the power to enter into this document and to carry
out any transaction or obligation contemplated by it; and
(c) all necessary actions have been taken to make this document valid and
binding on the Chargor and to enable the Chargor to carry out any
transaction or obligation contemplated by this document; and
(d) no Event of Default or Potential Event of Default has occurred; and
(e) the Chargor executing and performing this document and any other
Relevant Agreements does not result in a Security Interest (other
than under a Relevant Agreement) being created or crystallised on an
asset of the Chargor; and
(f) neither this document nor any other Relevant Agreement conflicts with
the operation or terms of any document or arrangement which binds the
Chargor; and
(g) all information provided to the Financier by or on behalf of the
Chargor is accurate and not misleading by omission; and
(h) the shares comprised in the Charged Property are duly authorised,
validly existing, fully paid and nonassessable; and
(i) it has the right and power to charge the Charged Property in the
manner set out in this document; and
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(j) it is the sole legal and beneficial owner of the Charged Property and
the Charged Property is free from:
(i) all Security Interests or third party rights and interests of
any kind; and
(ii) any restriction on transfer or rights of pre-emption;
(k) it has disclosed to the Financier the share capital in each of
Collins Foods International Pty Ltd and Sizzler International Marks,
Inc. No person has the right to call for shares, capital stock,
securities or other rights in any of those companies to be issued to
it; and
(l) the issuance of shares comprised in the Charged Property does not
contravene any law, rule or directive of any Public Authority or of
any stock exchange.
24.1 The representations and warranties in this clause are repeated on each day
on which the representations and warranties in the Negative Pledge are
repeated.
25. EFFECT OF EVENT OF DEFAULT
After an Event of Default the Financier may declare the Secured Money
payable. If so, the Secured Money becomes immediately payable, unless the
Financier specifies otherwise.
26. FINANCIER'S POWERS
27.1 GENERALLY
(a) After an Event of Default, the Financier may do the things which a
mortgagee and an absolute owner could do to the Charged Property and
exercise the rights, powers and remedies of a mortgagee and an
absolute owner of the Charged Property. These include, but are not
limited to, the things and powers described in this clause 10, and
the rights, powers and remedies of a secured party under the Uniform
Commercial Code of any jurisdiction in the United States of America;
(b) The Financier need not make a demand or give notice to anyone before
doing these things or exercising these powers, except if notice is
required as described in clause 10.10.
28.1 TO TAKE POSSESSION OF CHARGED PROPERTY
After an Event of Default the Financier may:
(a) take possession of the Charged Property; and
(b) receive the income, dividends, proceeds and profits from the Charged
Property.
29.1 TO DEAL WITH THE CHARGED PROPERTY
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After an Event of Default the Financier may do any of the following:
(a) (EXERCISE RIGHTS) exercise the rights and powers of an absolute owner
and do everything expedient in connection with shares, securities or
other rights which form part of the Charged Property. The Chargor
appoints the Financier and any Authorised Officer of the Financier
nominated by the Financier for this purpose, severally and jointly,
to be the authorised representative and proxy of the Chargor to do
the things described in this paragraph; and
(b) (TRANSFERS) complete and procure the registration of any transfers or
other documents that may have been lodged with the Financier in
relation to the Charged Property; and
(c) (BANK ACCOUNTS) open and operate bank accounts in the name of the
Chargor (alone or together) to the exclusion of the Chargor; and
(d) (CONTRACTUAL RIGHTS)
(i) perform the Chargor's obligations under; and
(ii) enforce or exercise or not exercise the Chargor's rights and
powers under; and
(iii) agree to vary or rescind,
a contract, instrument, arrangement or right forming part of the
Charged Property; and
(e) (COMPROMISE) settle, compromise or submit to arbitration a dispute in
connection with the Charged Property; and
(f) (PERFORM CHARGOR'S OBLIGATIONS) do everything it may to comply with
the obligations of the Chargor under a Relevant Agreement; and
(g) (REMEDY BREACH) do everything it may to make good a breach or default
inherent in an Event of Default, to its own satisfaction; and
(h) (DEPOSIT MONEY IN SUSPENSE OR OTHER ACCOUNTS) invest, deposit or hold
the Charged Property in any way that, and for as long as, the
Financier thinks fit and vary, transpose or reinvest the Charged
Property; and
(i) (RECOVER, PROTECT CHARGED PROPERTY) do everything the Financier
thinks necessary to recover or protect the Charged Property; and
(j) (LEGAL PROCEEDINGS) commence, prosecute, defend and settle
proceedings which the Financier considers expedient in connection
with this document or the Charged Property in or before a Public
Authority in the name of the Chargor or otherwise; and
(k) (EXCHANGE) exchange the Charged Property for any other property or
rights (with or without giving or receiving any other consideration
for the exchange); and
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(l) (TRANSFER OBLIGATIONS) effect a novation of or otherwise transfer to
any person obligations of the Chargor which arise under a Relevant
Agreement or otherwise; and
(m) (IMPROVE CHARGED PROPERTY) do anything which the Financier considers
would help improve the value of the Charged Property, obtain income
or returns from it or make it saleable or more saleable. Without
limitation, the Financier may improve or alter the Charged Property,
acquire additional property in the name of the Chargor and undertake
any marketing or publicity campaign; and
(n) (EXECUTE DOCUMENTS) enter into agreements and execute documents
itself or on behalf of the Chargor for any purpose in connection with
the Charged Property; and
(o) (BORROW, SECURE) in the name of the Chargor or otherwise:
(i) obtain financial accommodation (including, but not limited to,
from a party associated with the Financier) for any purpose
which the Financier considers expedient in connection with the
Charged Property; and
(ii) secure the payment or repayment of indebtedness relating to
that financial accommodation by a Security Interest over the
Charged Property, however it ranks for priority with the Charge
or a Collateral Security; and
(p) (EMPLOY AND APPOINT PERSONS) employ staff and appoint professionals
and consultants for any purpose, and at the remuneration, that the
Financier thinks fit; and
(q) (DELEGATE) delegate to any person for any time that the Financier
thinks fit any of the powers of the Financier under this document,
including this right of delegation; and
(r) (INCIDENTAL POWER) do anything the Financier thinks expedient in its
interests and incidental to any of its powers under this document,
without limiting those powers; and
(s) (SPEND MONEY) spend money in exercising its powers in this document.
That money then forms part of the Secured Money.
30.1 TO DISCHARGE OR ACQUIRE PRIOR SECURITY INTEREST
After an Event of Default the Financier may:
(a) purchase the debt secured by a prior Security Interest; or
(b) pay the amount required to discharge or satisfy that debt (including,
but not limited to, a debt secured by a Permitted Security Interest);
or
(c) take a transfer or assignment of that Security Interest and any
Guarantee,
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document or right ancillary or collateral to it.
31.1 EXERCISE OF RIGHTS UNDER CLAUSE 10.4
If the Financier exercises its rights under clause 10.4:
(a) the Charged Property is security for the same amount paid by the
Financier. This does not limit any other debt acquired by the
Financier; and
(b) that debt is immediately payable to the Financier and forms part of
the Secured Money and interest accrues on the unpaid amount of that
debt under clause 3.2; and
(c) the Financier need not enquire whether the money claimed to be owing
is actually owing in connection with the prior Security Interest, or
an ancillary or collateral document; and
(d) the person with the benefit of the prior Security Interest need not
enquire whether there is any money owing under a Relevant Agreement;
and
(e) the Chargor directs any person with the benefit of a prior Security
Interest to give the Financier any information it requires in
connection with the prior Security Interest. This includes, but is
not limited to, the state of accounts for that Security Interest.
32.1 TO SELL AND GIVE OPTIONS
After an Event of Default the Financier may do any of the following:
(a) (SELL) sell or help sell the Charged Property on the terms and in the
manner it thinks fit, whether or not the Financier has taken
possession; and
(b) (OPTIONS) give an option to purchase the Charged Property on the
terms it thinks fit; and
(c) (SELL TOGETHER WITH OTHER PROPERTY) sell the Charged Property with
any other property in any manner that the Financier thinks expedient;
and
(d) (HIVE OFF ASSETS OR OBLIGATIONS) promote the formation of any company
so that the company may purchase or acquire the Charged Property or
assume obligations of the Chargor or both; and
(e) (EFFECT HIVE-OFF) sell or assign the Charged Property or assume the
Chargor's obligations.
33.1 TO APPOINT RECEIVERS
After an Event of Default, the Financier may:
(a) appoint one or more persons to be a Receiver or Receivers of the
Charged Property, with the powers and rights described in this clause
10 (or such lesser powers as the Financier determines); and
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(b) remove that Receiver or those Receivers; and
(c) if a Receiver is removed, retires or dies, appoint another or others
in his or her place; and
(d) in the case of removal or retirement of a Receiver, reappoint that
person.
34.1 TO APPOINT MORE THAN ONE RECEIVER
If the Financier appoints two or more persons to be the Receiver, the
Financier may appoint them to act jointly, severally or jointly and
severally. If it is not specified in the instrument of appointment, the
Receivers are appointed to act severally.
35.1 TO PAY THE RECEIVER
The Financier may fix the remuneration of a Receiver at an amount agreed
between the Financier and the Receiver.
36.1 NOTICE OR LAPSE OF TIME REQUIRED BEFORE RIGHTS EXERCISED
(a) If notice or lapse of time is required under any statute before the
Financier can exercise its power of sale or any other rights
available to it under this document or by law, then that notice or
lapse of time is dispensed with.
(b) Paragraph (a) only applies if the relevant statute allows notice or
lapse of time to be dispensed with.
(c) If the relevant statute does not allow notice or lapse of time to be
dispensed with, but allows it to be shortened, then for the purposes
of this document, the period of notice or lapse of time is one day.
37.1 TO GIVE UP POSSESSION AND TERMINATE RECEIVERSHIP
The Financier may:
(a) give up possession of the whole or any part of the Charged Property;
or
(b) terminate a receivership,
or both.
38.1 PERSONS DEALING NOT BOUND TO ENQUIRE
A person dealing with the Financier or a Receiver or Attorney:
(a) need not enquire whether there has been a default by the Chargor
under a Relevant Agreement or whether the Financier, Receiver or
Attorney has acted properly; or
(b) need not enquire whether the Financier, a Receiver or an Attorney has
executed or registered an instrument or exercised a right, power or
remedy properly or
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with authority,
and whenever the Financier, a Receiver or an Attorney deals with the
Charged Property, that dealing is authorised and valid as far as anyone
involved with that dealing is concerned. The receipt of the Financier or a
Receiver or Attorney for any money payable to the Chargor discharges the
person paying that money to the extent of the payment.
39.1 RESPONSIBILITY FOR LOSS
The Financier is not responsible for a loss arising in connection with it
exercising or failing to exercise its powers under a Relevant Agreement nor
for an act or failure of an employee or agent of the Financier or any
Receiver. The Financier need not account for more money than it actually
receives.
40. RECEIVER'S POWERS
41.1 GENERAL
Unless the terms of the Receiver's appointment say otherwise, the Receiver
has the following powers over the Charged Property which the Receiver is
appointed to deal with:
(a) all the rights and powers given by law to mortgagees in possession,
receivers or receivers and managers; and
(b) all the rights and powers of the Financier under this document and at
law (other than the power to appoint Receivers); and
(c) power to obtain financial accommodation from the Financier, alone or
together with any other person, for a purpose and on the terms that
the Receiver considers expedient in connection with the Charged
Property; and
(d) power to secure the payment or repayment of indebtedness relating to
that financial accommodation by a Security Interest over the Charged
Property, however it ranks for priority with the Charge or a
Collateral Security.
The Receiver may exercise these rights and powers in the name of the
Chargor or otherwise.
42.1 RECEIVER IS AGENT OF CHARGOR
A Receiver is the agent of the Chargor. The Chargor alone is responsible
for the Receiver's acts and defaults. But the Receiver, to the extent
required by law, ceases to be the agent of the Chargor if a resolution is
passed or an order is made to Wind Up the Chargor. The Receiver may become
the agent of the Financier if the Financier gives a notice to the Receiver
in writing to that effect. The Financier may appoint a further Receiver,
despite that resolution or order.
43.1 ACCOUNTABILITY OF RECEIVER
A Receiver is not responsible for a loss arising in connection with the
exercise or
16
execution of the Receiver's powers, nor for any act or default of an
employee or agent of the Financier or the Receiver. A Receiver need not
account for more money than the Receiver actually receives.
44. POWER OF ATTORNEY
45.1 APPOINTMENT AND POWERS
The Chargor for valuable consideration irrevocably appoints the Financier,
each Authorised Officer of the Financier and each Receiver separately as
its attorneys to do the following on the Chargor's behalf and in the name
of the Chargor or the Attorney after the occurrence of an Event of Default
or Potential Event of Default:
(a) anything which the Chargor must do under a Relevant Agreement; and
(b) anything which, in the opinion of the Attorney:
(i) would give effect to a right, power or remedy of the Financier
or a Receiver; or
(ii) the Chargor should do,
under a Relevant Agreement or by law; and
(c) enter into or execute transactions, documents and agreements which,
in the opinion of the Attorney, the Chargor should enter into or
execute under a Relevant Agreement; and
(d) use the Chargor's name to exercise the powers of the Financier or a
Receiver under a Relevant Agreement, the law or otherwise; and
(e) obtain the issue of duplicate certificates for the shares, securities
or other rights comprised in the Charged Property if the original
certificates are lost or destroyed or believed to be so; and
(f) direct payment or any delivery of a dividend, notice, scrip or attend
to any other matter relating to the Charged Property; and
(g) give any direction or instruction to any person that the attorney
reasonably considers is necessary or desirable to better secure the
Charged Property to the Financier or to permit or facilitate the
exercise or preservation of a right or power of the Financier under a
Relevant Agreement; and
(h) perfect a security given by the Chargor in favour of the Financier
over the Charged Property; and
(i) exercise voting rights or any other power, right or remedy relating
to the Charged Property,
and the Chargor agrees to ratify anything done by an Attorney under this
power of attorney.
17
46.1 ATTORNEY MAY DELEGATE POWERS
An Attorney may delegate its powers (including the power to delegate) to
any person for any period and may revoke the delegation.
47.1 PURPOSE
The power of attorney created under this clause is irrevocable and is
granted to secure the performance by the Chargor of the Chargor's
obligations under each Relevant Agreement to which the Chargor is a party.
48. NOTICES AND DEMANDS FROM THE FINANCIER
49.1 SIGNING
A notice from or demand by the Financier to or on the Chargor may be signed
by an Authorised Officer of the Financier or by a solicitor acting for the
Financier. This signature may be handwritten or printed or reproduced by
other means.
50.1 SENDING
In addition to any method of service provided for by statute, a notice from
or demand by the Financier is given to or made on the Chargor if it is:
(a) sent by facsimile to the facsimile number of the Chargor last known
to the Financier or, if more than one facsimile number is known to
the Financier, to any of those facsimile numbers; or
(b) left for the Chargor or sent by prepaid mail (and by airmail if to an
address outside Australia) to the Chargor at:
(i) the address of the Chargor set out in this document; or
(ii) the Chargor's usual place of business last known to the
Financier; or
(iii) the Chargor's registered office; or
(iv) premises owned or occupied by the Chargor.
51.1 VALIDITY
A notice or demand is validly given even if:
(a) the Chargor has been Wound Up or the Chargor is absent from the place
the notice or demand is left at, or delivered or sent to; or
(b) the notice or demand is returned unclaimed.
52.1 RECEIPT
A notice or demand is taken to have been received by the Chargor:
18
(a) if delivered personally, on the same day; and
(b) if posted to an address in Australia, on the second Business Day
after it was posted; and
(c) if posted to an address outside Australia, on the fourth Business Day
after it was posted; and
(d) if sent by facsimile, when a transmission report is produced by the
sender's facsimile machine indicating that the notice or demand has
been sent to the relevant number.
53. PRESERVING THE FINANCIER'S RIGHTS, POWERS AND REMEDIES
54.1 PRESERVATION
(a) The fact that the Financier does not exercise, or delays the exercise
of, any right, power or remedy does not affect any of its other
rights, powers or remedies.
(b) The fact that the Financier delays the exercise of any right, power or
remedy does not constitute a waiver of that right, power or remedy.
(c) The fact that the Financier exercises a right, power or remedy does
not prevent the Financier from exercising that right, power or remedy
again.
(d) This document does not operate to extinguish or prejudice any right,
power or remedy of the Financier under a Relevant Agreement or in
connection with the Secured Money.
55.1 MORATORIUM LEGISLATION
A moratorium does not apply to a Relevant Agreement or the recovery of the
Secured Money except if:
(a) the Financier agrees in writing that it does; or
(b) it cannot be excluded by law.
56.1 REINSTATING OR REPLACING RIGHTS
If any payment made to the Financier in reduction of the Secured Money is
repaid or void or conceded to be void, voidable or repayable for any
reason, then, despite any release, settlement or discharge in connection
with the Secured Money:
(a) that payment has not discharged the relevant liability; and
(b) the Financier may recover the amount of that payment from the Charged
Property; and
(c) the Chargor must immediately do all acts and things the Financier
requires to replace or reinstate the Charge and any Collateral
Security which has been
19
released in connection with that payment.
57.1 EFFECT OF RELEASE
(a) A full or partial release of this Charge by the Financier does not
release the Charged Property under this document until the Financier
receives the Secured Money, regardless of any:
(i) receipt given, payout figure quoted or other form of account
stated; or
(ii) error or miscalculation by the Financier.
58. THIRD PARTY PROVISIONS
59.1 INDEPENDENT SECURITY
Neither this document nor the obligations of the Chargor under this
document will be abrogated, prejudiced or affected by:
(a) the granting of time or any other indulgence, consideration or
concession to the Chargor, a Debtor or any other person;
(b) the release, discharge, abandonment, waiver, loss, impairment,
relinquishment, transfer or other dealing with (either in whole or in
part and whether with or without consideration) any Relevant
Agreement or any right of the Financier against the Chargor, a Debtor
or any other person;
(c) any transaction or arrangement that may take place between the
Financier and a Debtor or any other person;
(d) the Financier varying, exchanging, renewing or releasing any Relevant
Agreement or refusing to do so;
(e) any variation of a transaction, arrangement or document between the
Financier and any other person (including, but not limited to any
increase in the amount of financial accommodation provided or agreed
to be provided to any Debtor);
(f) the capitalising and adding to principal of all interest accrued on
the Secured Money (or any part of the Secured Money) but not yet
paid;
(g) any Collateral Security or right which the Financier now holds or in
the future may obtain;
(h) the Financier failing or neglecting to recover any of the Secured
Money by the realisation of any Collateral Security or otherwise;
(i) any laches, acquiescence, delay, and omission or mistake on the part
of the Financier or any other person;
(j) the insolvency, Winding Up or incapacity or change in the legal
capacity of the Chargor or a Debtor;
20
(k) any judgment or order against the Chargor, a Debtor or other person;
(l) any lack of power by the Chargor or a Debtor to enter into any
Relevant Agreement or give any Collateral Security either in its own
right or in the capacity in which it is purporting to act;
(m) the liability of the Chargor, a Debtor or any other person to the
Financier ceasing from any cause (including but not limited to being
released or discharged by the Financier);
(n) any Collateral Security or any other security taken or held at any
time by the Financier being in whole or in part void, defective in
form or substance or unenforceable;
(o) property secured under a Collateral Security being destroyed,
forfeited, extinguished, surrendered, resumed or determined;
(p) any impossibility or illegality of performance of any Relevant
Agreement or any provision of any Relevant Agreement;
(q) any default, misrepresentation, negligence, misconduct or other
action or inaction of any kind by any person;
(r) any irregularity or deficiency in the execution of this document or
any Collateral Security by the Chargor or any Debtor or any lack of
authority or power of any person in relation to such execution;
(s) the failure to give notice to, or the lack of consent of the Chargor
or a Debtor before or after the happening of any of the acts or
events mentioned in this subclause or before the making of any
agreement or transaction between the Financier and the Chargor, a
Debtor or other person;
(t) any other dealing, matter or thing which, but for this provision
could or might operate to affect or discharge the liability of the
Charged Property under this document.
60.1 NO OBLIGATION TO PROCEED
The Financier will not be required to proceed against any Debtor or exhaust
any remedies it may have against any Debtor or enforce any Collateral
Security but shall be entitled to demand and receive payment from any
Debtor or realise upon the Charged Property when any payment is due under
any Relevant Agreement and whether due from that person or not.
61.1 NO OBLIGATION TO MARSHAL
The Financier will not be obliged to marshal in favour of the Chargor any
security held by the Financier or any funds or assets that the Financier
may be entitled to receive or have a claim upon.
62.1 WINDING UP OF DEBTOR
21
On the Winding Up of any Debtor the Chargor authorises the Financier:
(a) to prove for all money which has been paid under any Relevant
Agreement; and
(b) to retain and to carry to a suspense account and appropriate at the
Financier's discretion any dividends received;
until the Financier has been paid in full.
63.1 EXCLUSION OF RIGHTS
The Chargor must not:
(a) until the Financier has received all the Secured Money and the
Financier is satisfied that it will not have to repay any money
received by it in connection with the Secured Money (either directly
or indirectly):
(i) claim or exercise any right of set-off, counter-claim or other
right or release at law or in equity which has or might have
the effect of reducing or discharging the Secured Money;
(ii) claim or exercise any right of subrogation or otherwise claim
the benefit of any Collateral Security;
(iii) prove or claim in the liquidation or bankruptcy of any Debtor
in competition with the Financier or otherwise claim or receive
the benefit of any distribution, dividend or payment arising
out of the liquidation or bankruptcy of a Debtor; or
(iv) claim or recover any sum paid by the Chargor pursuant to this
document from any person or commence any action in respect of
any right which may accrue to the Chargor in respect of sums
paid by the Chargor under this document; or
(b) whether or not the Secured Money has been paid in full call upon the
Financier to sue or take proceedings against any Debtor or raise a
defence, set-off or counter-claim of itself or any Debtor in
reduction of its liability under this document.
64. MISCELLANEOUS
65.1 NO OBLIGATION TO EXERCISE RIGHTS OR GIVE CONSENT
Each of the Financier and a Receiver may:
(a) exercise or not exercise any right, power or remedy; and
(b) give or not give consent; and
(c) make or not make a decision,
under this document, in its absolute discretion without giving a reason and
without being
22
liable or accountable for the consequences. In relation to the giving or
not giving of consent, the Financier will act in a manner which the
Financier determines in its absolute discretion to be reasonable. Such
determination shall not be questioned by the Chargor.
66.1 CONSENT MUST BE IN WRITING
A consent given or a right, power or remedy waived by the Financier is
effective only if given or waived in writing.
67.1 NOTIFICATION FROM CHARGOR
If the Chargor is required under this document to notify the Financier
about anything, the Chargor must do so in writing.
68.1 FINANCIER MAY SET OFF
Without any demand or notice, the Financier may set off and apply
indebtedness it owes to the Chargor (whatever the currency) against the
Secured Money:
(a) whether the indebtedness is owed alone or with any other person; and
(b) whether or not the Secured Money or that indebtedness is immediately
payable.
69.1 CHARGOR MUST NOT SET OFF
The Chargor must not claim, exercise or attempt to exercise a right of set-
off or any other right which might reduce or discharge the Secured Money.
70.1 NO MARSHALLING
The Financier need not resort to a Collateral Security or other Security
Interest before exercising a power under this document.
71.1 SUSPENSE ACCOUNT
The Financier may credit money received in or towards satisfaction of the
Secured Money to a suspense account. The Financier may keep the money in
that account for as long as the Financier thinks fit. Interest will not
accrue on such account. The Financier may apply the money to reduce the
Secured Money whenever it thinks fit.
72.1 SURPLUS PROCEEDS
If surplus money remains in the hands of the Financier or a Receiver after
payment of all the Secured Money (and satisfaction of any obligation
ranking in priority to the Secured Money or secured by a Security Interest
over the Charged Property):
(a) no trust arises over that surplus money; and
(b) that surplus money does not carry interest and the Financier or
Receiver may pay it to an account in the name of the Chargor (whether
or not opened by the Financier or Receiver for that purpose). The
Financier or Receiver is then no longer liable for the surplus money.
23
73.1 APPLYING RECEIPTS
The Financier may apply or appropriate money received to reduce the Secured
Money in the order, and to satisfy whatever part of the Secured Money, the
Financier sees fit.
74.1 TACKING
For the purpose of applying section 282 of the Corporations Law or any
equivalent provision in any jurisdiction, if the Financier is obliged to
make further advances under a Relevant Agreement, that Relevant Agreement
is taken to be incorporated in this document so that this document imposes
on the Financier an obligation to advance that money.
75.1 THE FINANCIER MAY ASSIGN RIGHTS
The Financier may assign or otherwise deal with its rights and benefits
under this document.
76.1 THE FINANCIER MAY DISCLOSE INFORMATION
The Financier may disclose to a potential assignee or participant any
information about the Chargor, any Debtor or a Relevant Agreement which it
considers appropriate.
77.1 CERTAIN NOTICES OR DEMANDS
A notice from or demand by the Financier stating:
(a) that a specified sum of money is owing or payable (or both) under a
Relevant Agreement; or
(b) that an Event of Default has occurred; or
(c) something relevant to the rights or obligations of the Financier or
the Chargor under a Relevant Agreement,
is admissible in proceedings and is conclusive evidence of the matters
stated except if there is manifest error.
78.1 IF DUE DATE NOT A BUSINESS DAY
If anything should be done under this document on a day that is not a
Business Day, it must be done on the previous Business Day.
79.1 SEVERABILITY
(a) A construction of this document that results in all provisions being
enforceable is to be preferred to a construction that does not so
result.
(b) If, despite the application of paragraph (a), a provision of this
document is illegal or unenforceable:
24
(i) and it would be legal and enforceable if a word or words were
omitted, that word or those words are severed; and
(ii) in any other case, the whole provision is severed,
and the remainder of this document continues in force.
80.1 GOVERNING LAW AND JURISDICTION
This document is governed by the law of Queensland except:
(a) as required by mandatory provisions of law; and
(b) to the extent that the validity, perfection or enforceability of any
of the security interests hereunder, or remedies hereunder, are
dependent on the laws of a jurisdiction other than Queensland, in
which case the governing law shall (to that extent only) be the law of
that jurisdiction.
The parties hereto agree and intend that:
(c) a proper forum/jurisdiction for any litigation or process arising out
of or related to this Agreement shall be any court located in
Queensland; and
(d) a proper forum/jurisdiction for any litigation or process in respect
of any of the Charged Property located in a jurisdiction other than
Queensland shall be any court located either in Queensland or that
other jurisdiction.
The Chargor irrevocably and unconditionally submits to the non-exclusive
jurisdiction of the courts of Queensland and/or the other jurisdiction
referred to in paragraph (d) (as the case may be). The Chargor, to the
extent permitted by applicable laws, hereby expressly waives any defence or
objection to jurisdiction or venue based on the doctrine of forum non
conveniens, and stipulates that the courts of Queensland and/or that other
jurisdiction (as the case may be) shall have in personam jurisdiction and
venue over it for the purpose of any such litigation or process arising out
of or related to this document.
81.1 FINANCIER NEED NOT EXECUTE
This document is enforceable by the Financier even if the Financier does
not execute it.
82. LIMITED RECOURSE
83.1 LIMITATION
(a) Subject to paragraphs (b) and (c), but notwithstanding any other term
of this document, the Financier's (or a Receiver's or Attorney's)
sole recourse against the Chargor will be limited to the Chargor's
rights (including, without limitation, rights to income) and interest
in the Charged Property, the proceeds of sale and other disposal of
or dealing with the Charged Property, and the proceeds of the Charged
Property (including, without limitation, cash dividends) received by
the Chargor after an Event of Default has occurred and while it is
continuing;
(b) Nothing in paragraph (a) limits the liability of the Chargor to the
Financier
25
under any other document;
(c) Nothing in paragraph (a) limits the liability of the Chargor to the
Financier for breach of representation or undertaking caused by the
Chargor's negligence, fraud or wilful misconduct;
(d) Nothing in paragraph (a) will prejudice or affect the rights of the
Financier, a Receiver or an Attorney to seek a monetary judgement or
other remedy against the Chargor to enforce this document or realise
upon the Charged Property.
84.1 UNRESTRICTED REMEDIES
(a) Nothing in Clause 17.1 limits the Financier or any Receiver or
Attorney in:
(i) exercising its powers in relation to the Charged Property;
(ii) obtaining or taking any proceedings to obtain an injunction or
other order to restrain any breach of this document; or
(iii) obtaining or taking proceedings to obtain declaratory relief in
relation to any provision of this document.
EXECUTED as a deed.
THE COMMON SEAL of SIZZLER )
INTERNATIONAL, INC. is affixed in )
accordance with its articles of association in )
the presence of )
- ------------------------------------------------ ------------------------------------------
Witness Director/Authorised Officer
- ------------------------------------------------ ------------------------------------------
Name (print) Name (print)
SIZZLER INTERNATIONAL, INC.
WESTPAC BANKING CORPORATION
ARBN 007 457 141
STOCK PLEDGE
MINTER ELLISON
Lawyers
Waterfront Place
1 Eagle Street
BRISBANE QLD 4000
DX 102 BRISBANE
Telephone (07) 3226 6333
Facsimile (07) 3229 1066
ARF PAK 9703949
INDEX
1. INTERPRETATION 1
1.1 DEFINITIONS.................................................... 1
1.2 OTHER EXPRESSIONS.............................................. 4
10. FINANCIER'S POWERS.................................................... 10
10.10 NOTICE OR LAPSE OF TIME REQUIRED BEFORE RIGHTS EXERCISED..... 14
10.11 TO GIVE UP POSSESSION AND TERMINATE RECEIVERSHIP............. 15
10.12 PERSONS DEALING NOT BOUND TO ENQUIRE......................... 15
10.13 RESPONSIBILITY FOR LOSS...................................... 15
10.2 TO TAKE POSSESSION OF CHARGED PROPERTY........................ 11
10.3 TO DEAL WITH THE CHARGED PROPERTY............................. 11
10.4 TO DISCHARGE OR ACQUIRE PRIOR SECURITY INTEREST............... 13
10.5 EXERCISE OF RIGHTS UNDER CLAUSE 10.4.......................... 13
10.6 TO SELL AND GIVE OPTIONS...................................... 13
10.7 TO APPOINT RECEIVERS.......................................... 14
10.8 TO APPOINT MORE THAN ONE RECEIVER............................. 14
10.9 TO PAY THE RECEIVER........................................... 14
11. RECEIVER'S POWERS..................................................... 15
11.1 GENERAL....................................................... 15
11.2 RECEIVER IS AGENT OF CHARGOR.................................. 16
11.3 ACCOUNTABILITY OF RECEIVER.................................... 16
12. POWER OF ATTORNEY..................................................... 16
12.1 APPOINTMENT AND POWERS........................................ 16
12.2 ATTORNEY MAY DELEGATE POWERS.................................. 17
12.3 PURPOSE....................................................... 17
13. NOTICES AND DEMANDS FROM THE FINANCIER................................ 17
13.1 SIGNING....................................................... 17
13.2 SENDING....................................................... 17
13.3 VALIDITY...................................................... 18
13.4 RECEIPT....................................................... 18
14. PRESERVING THE FINANCIER'S RIGHTS, POWERS AND REMEDIES................ 18
14.1 PRESERVATION.................................................. 18
14.2 MORATORIUM LEGISLATION........................................ 19
14.3 REINSTATING OR REPLACING RIGHTS............................... 19
14.4 EFFECT OF RELEASE............................................. 19
15. THIRD PARTY PROVISIONS................................................ 19
15.1 INDEPENDENT SECURITY.......................................... 19
15.2 NO OBLIGATION TO PROCEED...................................... 21
15.3 NO OBLIGATION TO MARSHAL...................................... 21
15.4 WINDING UP OF DEBTOR.......................................... 21
15.5 EXCLUSION OF RIGHTS........................................... 21
16. MISCELLANEOUS......................................................... 22
16.1 NO OBLIGATION TO EXERCISE RIGHTS OR GIVE CONSENT.............. 22
16.10 TACKING...................................................... 23
16.11 THE FINANCIER MAY ASSIGN RIGHTS.............................. 23
16.12 THE FINANCIER MAY DISCLOSE INFORMATION....................... 24
16.13 CERTAIN NOTICES OR DEMANDS................................... 24
16.14 IF DUE DATE NOT A BUSINESS DAY............................... 24
16.15 SEVERABILITY................................................. 24
16.16 GOVERNING LAW AND JURISDICTION............................... 24
16.17 FINANCIER NEED NOT EXECUTE................................... 25
16.2 CONSENT MUST BE IN WRITING.................................... 22
16.3 NOTIFICATION FROM CHARGOR..................................... 22
16.4 FINANCIER MAY SET OFF......................................... 22
16.5 CHARGOR MUST NOT SET OFF...................................... 23
16.6 NO MARSHALLING................................................ 23
16.7 SUSPENSE ACCOUNT.............................................. 23
16.8 SURPLUS PROCEEDS.............................................. 23
16.9 APPLYING RECEIPTS............................................. 23
17. LIMITED RECOURSE...................................................... 25
17.1 LIMITATION.................................................... 25
17.2 UNRESTRICTED REMEDIES......................................... 25
2. CHARGE................................................................. 5
2.1 CREATING THE CHARGE............................................ 5
2.2 FIXED CHARGE................................................... 5
2.3 CONTINUING SECURITY AND DISCHARGING THE CHARGE................. 5
2.4 FIRST PRIORITY SECURITY INTEREST............................... 6
3. [INTENTIONALLY OMITTED]................................................ 6
4. CHARGOR'S OBLIGATIONS.................................................. 6
4.1 POSITIVE OBLIGATIONS........................................... 6
4.2 NEGATIVE OBLIGATIONS........................................... 6
4.3 OBLIGATIONS CONCERNING CHARGED PROPERTY........................ 7
4.4 OBLIGATIONS CONCERNING VOTING RIGHTS AND DIVIDENDS............. 7
5. CHARGOR'S REPORTING OBLIGATIONS........................................ 8
5.1 NOTICES TO THE FINANCIER....................................... 8
6. ACCESS TO AND INVESTIGATION OF RECORDS................................. 8
6.1 GIVING ACCESS TO RECORDS....................................... 8
7. BETTER SECURITY AND RIGHTS FOR FINANCIER............................... 9
7.1 BETTER SECURITY AND RIGHTS..................................... 9
7.2 EXAMPLES....................................................... 9
8. REPRESENTATIONS AND WARRANTIES......................................... 9
9. EFFECT OF EVENT OF DEFAULT............................................. 10