Exhibit 99.2
Date 2004
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Parties
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1. Foster Wheeler (QLD) Pty Limited (ABN 96 105 763 559) incorporated in
Australia of 255 Adelaide Street, Brisbane, Queensland, Australia (the
Mortgagor); and
2. Saberasu Japan Investments II B.V. of Strawinskylaan 3111, 7th Floor,
1077 ZX Amsterdam, The Netherlands (the Collateral Agent).
Recitals
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A. Under an agreement dated the date of this Deed between the Collateral
Agent, the Borrowers, Foster Wheeler Limited and the other parties
names as Guarantor in that agreement and Saberasu Japan Investments II
B.V. as Administrative Agent (the Financing Agreement) the Mortgagor
may wish the Mortgagees to provide advances or accommodation to or for
the account of a Borrower or another person.
B. This charge is given to the Collateral Agent as trustee for itself and
any other Mortgagee.
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IT IS AGREED as follows.
1. Definitions and Interpretation
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1.1 Definitions
The following definitions apply unless the context requires otherwise.
Attorney means any attorney appointed under this Deed or any Collateral
Security.
Authorisation includes:
(a) any consent, authorisation, registration, filing, lodgement,
agreement, notarisation, certificate, permission, licence,
approval, authority or exemption from, by or with a Government
Authority; or
(b) in relation to anything which will be fully or partly
prohibited or restricted by law if a Government Authority
intervenes or acts in any way within a specified period after
lodgement, filing, registration or notification, the expiry of
that period without intervention or action.
Borrower means:
(a) Foster Wheeler Energy Limited;
(b) Process Industries Agency Limited;
(c) Foster Wheeler South Africa (Pty) Limited.
(d) Foster Wheeler Properties Pty Limited;
(e) any other Borrower named in the Financing Agreement; or
(f) any other person which the Mortgagor and the Collateral Agent
agree is to be a Borrower for the purposes of this Deed.
Cash Collateral Accounts means accounts holding balances as cash
collateral for the Mortgagor's obligations under bonding or guarantee
facilities and includes any replacement, substitute or additional
account of such Cash Collateral Account from time to time whether by
way of transfer of monies, redesignation, renumbering or otherwise and
any sub-account(s) of such account.
Client Advance Accounts means accounts held by the Mortgagor but funded
in advance by an identified client for a particular project and
includes any replacement, substitute or additional account of such
Client Advance Accounts from time to time whether by way of transfer of
monies, redesignation, renumbering or otherwise and any sub-account(s)
of such account.
Client Specific Assets means all plant, machinery, computers, vehicles,
office or other equipment now or in the future owned by the Mortgagor
and its interest in any plant, machinery, computers, vehicles, office
or other equipment in its possession that is acquired on behalf of a
client for a particular assignment or project, in each case, in good
faith and in the ordinary course of business on ordinary business
terms.
Collateral Security means any Security Interest, Guarantee or other
document or agreement at any time created or entered into as security
for any Secured Money.
Collection Account means a bank account of the Mortgagor as defined in
section 8.01(a) of the Financing Agreement.
Excluded Debt means any Debt (as such term is defined in the Senior
Note Indenture) owed to the Mortgagor from time to time and which falls
within any prohibition, restriction or limitation in the Senior Note
Indenture (as at the date of this Deed) on the creation of security
over any such Debt.
Finance Document means:
(a) this Deed or any Collateral Security;
(b) the Financing Agreement;
(c) any other document or agreement defined in the Financing
Agreement as a Loan Document, or which the Mortgagor and the
Collateral Agent at any time agree is to be a Finance Document
for the purposes of this Deed; or
(d) any document or agreement entered into or provided under or in
connection with, or for the purpose of amending or novating,
any of the above. It includes a written undertaking by or to a
party or its lawyers under or in relation to any of the above.
Group Marketable Securities means any securities, within the meaning of
s92(3) of the Corporations Act 2001 (Cth) or similar instrument under
the laws of a foreign jurisdiction, which the Mortgagor holds in any
Related Entity or Affiliate.
Group Shares means:
(a) the Mortgagor's interest in the unincorporated joint venture
with SNC Lavalin Australia Pty Limited or any Group Shares
specified in Schedule 3 of the Security Agreement (United
Kingdom);
(b) any and all shares held by the Mortgagor from time to time
which are subject to any prohibition, restriction or
limitation in the Senior Note Indenture or the US Bank
Agreement (each as at the date of this Deed) on the creation
of security over an asset of any subsidiary company; and
(c) any and all interests of any Mortgagor in any joint venture
arrangements (whether incorporated or not) the terms of which
(A) prohibit or restrict the assignment of, or creation of
Security Interests over, the Mortgagor's interests therein or
(B) would entitle another party to exercise any rights in
respect of or affecting the Mortgagor's interests in such
joint venture arrangements following the assignment of, or
creation of Security Interests over, its interests in such
joint venture arrangements,
and any reference in this Deed to Group Shares shall be deemed to
include, in relation to such shares or interests, all dividends,
coupons and other distributions paid or payable after the date of this
Deed on all or any of such shares and interests and all stocks, shares,
securities (and the dividends or interest thereon), rights, money,
allotments, benefits, advantages or property accruing or offered at any
time by way of redemption, bonus, preference, option rights or
otherwise to or in respect of any of such shares and interests or in
substitution, conversion or exchange therefor.
Guarantee means an obligation or offer to provide funds (including by
subscription or purchase) or otherwise be responsible in respect of an
obligation or indebtedness, or the financial condition or solvency, of
another person. It includes a guarantee, indemnity, letter of credit or
legally binding letter of comfort, or an obligation or offer to
purchase an obligation or indebtedness of another person.
Lease means an agreement under which an asset may be used, exploited,
operated or managed by a person other than the owner. It includes a
lease, licence, charter, hire purchase or hiring arrangement.
Liquidation includes receivership or other appointment of a controller,
deregistration, compromise, deed of arrangement, amalgamation,
administration, reconstruction, winding up, dissolution, assignment for
the benefit of creditors, arrangement or compromise with creditors,
bankruptcy.
Marketable Security has the meaning given to securities in s92(3) of
the Corporations Act 2001 (Cth), but also includes:
(a) an undertaking referred to in the exceptions in paragraphs
(a), (b) and (d) of the definition of debenture in the
Corporations Act 2001 (Cth);
(b) a unit or other interest in a trust or partnership;
(c) a negotiable instrument; and
(d) a right or an option in respect of a Marketable Security,
whether issued or unissued, including any of the above.
Material Insurances means all contracts and policies of insurance
(including, for the avoidance of doubt, all cover notes) of whatever
nature which are from time to time taken out by or on behalf of the
Mortgagor or (to the extent of such interest) in which the Mortgagor
has an interest, other than
contracts and policies of insurance relating to employer's liability,
public and products liability, motor fleet, motor uninsured loss, group
personal accident and travel, professional indemnity and such other
contracts and policies of insurance as the Collateral Agent, acting
reasonably, may agree.
Material Real Property means, in the case of freehold property, such
property the value of which as at the date of acquisition is in excess
of (pound)250,000 or its equivalent in Australian dollars and, in the
case of leasehold property, such property which is leased for a period
in excess of at least 5 years at an annual rent of at least
(pound)100,000 or its equivalent in Australian dollars.
Mortgaged Property means the property mortgaged or charged by this Deed
or any Collateral Security granted by the Mortgagor.
Mortgagee means:
(a) the Collateral Agent;
(b) the Administrative Agent;
(c) any person for whom the Collateral Agent is acting as agent or
trustee and which at any time makes available financial
accommodation to, or for the account of, the Mortgagor or any
other person under any Finance Document;
(d) any other person which the Mortgagor and the Collateral Agent
agree is to be a Mortgagee for the purposes of this Deed; or
(e) any successor or assign of any of the above.
Operating Account means each bank account agreed in writing by the
Collateral Agent (in its absolute discretion) as being an Operating
Account, unless and until the Collateral Agent provides a written
notice to the Mortgagor revoking the status of such a bank account as
an Operating Account. A revocation notice is effective on and from the
date it is given.
Power means a power, right, authority, discretion or remedy which is
conferred on the Mortgagee or a Receiver or Attorney:
(a) by this Deed or any Collateral Security; or
(b) by law in relation to this Deed or any Collateral Security.
Receiver means a receiver or receiver and manager appointed under this
Deed or any Collateral Security.
Related Entity means, in relation to an entity (the first entity):
(a) a Subsidiary of the first entity;
(b) an entity of which the first entity is a Subsidiary; or
(c) a Subsidiary of another entity of which the first entity is
also a Subsidiary.
Secured Money means all money which the Mortgagor or any Borrower
(whether alone or not) is or at any time may become actually or
contingently liable to pay to or for the account of any Mortgagee
(whether alone or not) for any reason whatever.
It includes money by way of principal, interest, fees, costs,
Guarantee, indemnity, charges, duties or expenses or payment of
liquidated or unliquidated damages under or in connection with a
document or agreement, or as a result of a breach of or default under
or in connection with, a document or agreement.
Where the Mortgagor or any Borrower would have been liable but for its
Liquidation, it will be taken still to be liable.
Security Account means each Collection Account and Operating
Account.Security Interest includes any mortgage, pledge, lien or charge
or any security or preferential interest or arrangement of any kind. It
includes:
(a) anything which gives a creditor priority to other creditors
with respect to any asset; and
(b) retention of title other than in the ordinary course of
day-to-day trading and a deposit of money by way of security.
Subsidiary has the meaning given in the Corporations Act 2001 (Cth),
but an entity will also be taken to be a Subsidiary of an entity if it
is controlled by that entity (as defined in s50AA of the Corporations
Act 2001 (Cth)) and, without limitation:
(a) a trust may be a Subsidiary, for the purposes of which a unit
or other beneficial interest will be regarded as a share; and
(b) an entity may be a Subsidiary of a trust if it would have been
a Subsidiary if that trust were a corporation.
Tax includes any tax, levy, impost, deduction, charge, rate, duty,
compulsory loan or withholding which is levied or imposed by a
Government Authority, and any related interest, penalty, charge, fee or
other amount.
Unpaid Capital means any uncalled or unpaid share capital or premiums
of the Mortgagor.
1.2 Financing Agreement definitions
Definitions in the Financing Agreement apply in this Deed unless the
context requires otherwise or the relevant term is defined in this
Deed.
1.3 Interpretation
Headings are for convenience only and do not affect interpretation. The
following rules apply unless the context requires otherwise.
(a) The singular includes the plural and the converse.
(b) A gender includes all genders.
(c) Where a word or phrase is defined, its other grammatical forms
have a corresponding meaning.
(d) A reference to a person, corporation, trust, partnership,
unincorporated body or other entity includes any of them.
(e) A reference to a clause, annexure or schedule is a reference
to a clause of, or annexure or schedule to, this Deed.
(f) A reference to a party to this Deed or another agreement or
document includes the party's successors and permitted
substitutes or assigns.
(g) A reference to legislation or to a provision of legislation
includes a modification or re-enactment of it, a legislative
provision substituted for it and a regulation or statutory
instrument issued under it.
(h) A reference to writing includes a facsimile transmission and
any means of reproducing words in a tangible and permanently
visible form.
(i) A reference to conduct includes an omission, statement or
undertaking, whether or not in writing.
(j) The meaning of terms is not limited by specific examples
introduced by including, or for example, or similar
expressions.
(k) A reference to an asset includes any real or personal, present
or future, tangible or intangible property or asset (including
Intellectual Property Rights) and any right, interest, revenue
or benefit in, under or derived from the property or asset.
(l) An Event of Default subsists until it has been waived in
writing by the relevant Agent.
(m) A reference to an amount for which a person is contingently
liable includes an amount which that person may become
actually or contingently liable to pay if a contingency
occurs, whether or not that liability will actually arise.
(n) A right or obligation of any 2 or more persons (other than the
Mortgagees) in a Finance Document is joint and several.
1.4 Document or agreement
A reference to:
(a) an agreement includes a Security Interest, Guarantee,
undertaking, deed, agreement or legally enforceable
arrangement whether or not in writing; and
(b) a document includes an agreement (as so defined) in writing or
a certificate, notice, instrument or document.
A reference to a specific agreement or document includes it as amended,
novated, supplemented or replaced from time to time, except to the
extent prohibited by this Deed.
2. Charge
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2.1 Charge
(a) Subject to paragraph (b), the Mortgagor charges to the
Collateral Agent, for itself and as trustee for the
Mortgagees:
(i) all its present assets and undertaking;
(ii) any land situated in New South Wales, Victoria,
Western Australia or Tasmania but only until the
first anniversary of this Deed; and
(iii) any assets and undertaking of the Mortgagor which at
any time are, or are taken by applicable Queensland
stamp duty legislation to be, situated in Queensland,
including in each case any Unpaid Capital.
(b) The charge does not charge:
(i) any assets or undertaking of the Mortgagor at the
date of this Deed which on the date of this Deed are,
or are taken under the applicable stamp duties
legislation of the relevant jurisdiction to be,
situated in the Australian Capital Territory or the
Northern Territory or outside Australia;
(ii) each Cash Collateral Account and any amount standing
to the credit of such account;
(iii) each Client Advance Accounts and any amount standing
to the credit of such account;
(iv) each Client Specific Asset;
(v) Excluded Debt;
(vi) Group Shares;
(vii) the Mortgagor's interest in any plant, machinery,
computers, vehicles, office or other equipment in its
possession but only to the extent that the creation
or subsistence of a charge over any such interests
are prohibited by the terms of the agreement setting
out or creating such interests; or
(viii) any asset which would otherwise be subject to the
floating charge under this Deed but only to the
extent that the Mortgagor is prohibited from creating
a Security Interest over such asset.
(c) The charge secures the due and punctual payment of the Secured
Money.
(d) The charge is given in consideration of the Mortgagees
entering the Finance Documents, providing or continuing
advances or financial accommodation from time to time, or
both, and for other valuable consideration received.
(e) The Mortgagor acknowledges it owes $100 to the Collateral
Agent, payable on demand.
2.2 Prospective liability
(a) Subject to clause 2.3 (Increase in prospective liability), for
the purpose of the Corporations Act 2001 the maximum
prospective liability (as defined in the Corporations Act
2001) secured by this Deed is A$10,000,000 or its equivalent
but this paragraph does not limit the amount of liability at
any time secured by or recoverable under this Deed.
(b) The nature of that prospective liability is advances,
interest, fees, costs, indemnities and other amounts included
in the definition of Secured Money.
2.3 Increase in prospective liability
From time to time, the Collateral Agent may lodge a notice under
s268(2) of the Corporations Act 2001 (Cth) on behalf of the Mortgagor
specifying an increase in the maximum prospective liability secured by
this Deed. From the date of lodgement the sum specified in clause 2.2
will be taken to be varied to the sum specified in the notice.
2.4 Limit
Despite any other provision of this Deed the total amount recoverable
under the charge is limited to A$500,000.
2.5 Acknowledgement of Indebtedness
Without limiting the Secured Money, the Mortgagor acknowledges that the
sum of $100 is payable by it to the Collateral Agent on demand.
3. Nature of Charge
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3.1 Priority
The charge is a first charge and takes priority over all Security
Interests.
3.2 Nature of charge
The charge operates:
(a) as a fixed charge as regards all present and future:
(i) Material Real Property;
(ii) Unpaid Capital;
(iii) machinery (other than stock-in-trade), plant, any
item of equipment having a value in excess of A$1,000
or its equivalent;
(iv) Material Insurance and all the proceeds of those
policies;
(v) books of account, registers, minute books,
statements, invoices, accounting and other records
(including those recorded electronically) and all
software;
(vi) interests in any partnership;
(vii) Authorisations to the extent that the creation or
subsistence of a charge over such Authorisations is
not prohibited by statute, regulation, operation of
law or the express terms of such Authorisation;
(viii) book and other debts (including Accounts Receivable
provided that for the avoidance of doubt, the
Mortgagor shall not be required to (and the
Collateral Agent may not) notify the creation of this
charge to the Mortgagor's respective debtors except
at any time after an Event of Default) and the
proceeds of those debts (other than proceeds which
may be dealt with by the Mortgagor under clause
3.6(a));
(ix) accounts opened in the name of the Mortgagor or for
the benefit of the Mortgagor under any Finance
Document (including any Collection Account but not
including any Operating Account);
(x) other assets that are not acquired for disposal in
the ordinary course of the Mortgagor's business,
and all right, title and interest of the Mortgagor
in, under or derived from, the above (except as
expressly provided); and
(b) subject to clause 3.4 (Crystallisation), as a floating charge
only as regards all other assets charged.
All sub-paragraphs of paragraph (a) are to be construed independently.
None limits the generality of any other.
3.3 Dealing with Mortgaged Property
(a) Except with the prior written consent of the Collateral Agent
or as expressly permitted in any Finance Document, the
Mortgagor shall not:
(i) create or allow to exist any Security Interest over
any Mortgaged Property; or (ii) in any other way:
(A) dispose of;
(B) create or allow any interest in; or
(C) part with possession of,
any Mortgaged Property, except, subject to the
Finance Documents, any disposal of or dealing with
any asset for the time being subject to the floating
charge in the ordinary course of its ordinary
business.
(b) Where by law a mortgagee may not restrict the creation of any
Security Interest over an asset ranking after the charge
created by this Deed, paragraph (a) will not restrict that
creation, but the Mortgagor shall ensure that before that
Security Interest is created the holder of that Security
Interest enters into a deed of priority in form and substance
specified by the Collateral Agent.
3.4 Crystallisation
The floating charge referred to in clause 3.2 (Nature of charge) will
automatically and immediately crystallise and operate as a fixed
charge:
(a) in respect of any asset:
(i) on notice to the Mortgagor from the Collateral Agent
(which it may only give after the occurrence of an
Event of Default);
(ii) if without the prior written consent of the
Collateral Agent, the Mortgagor:
(A) creates or allows any Security Interest
over;
(B) sells, Leases or otherwise disposes of;
(C) creates or allows any interest in; or
(D) parts with possession of,
that asset in breach of a Finance Document, or agrees
or attempts to do so or takes any step towards doing
so;
(iii) on any step being taken with a view to levying or
enforcing any distress, attachment or other execution
on that asset or to enforcing any Security Interest
in respect of that asset;
(iv) on the Commissioner of Taxation or his delegate or
successor signing a notice under:
(A) s218 or s255 of the Income Tax Assessment
Act 1936 (Cth);
(B) s260-5 of the Taxation Administration Act
1953 (Cth); or
(C) any similar legislation,
which may affect that asset; or
(v) on a Government Authority taking any step which may
result in an amount of Tax or an amount owing to a
Government Authority ranking ahead of the floating
charge with respect to that asset; or
(b) in respect of all the Mortgaged Property:
(i) if an order is made or a resolution is passed for the
winding up of the Mortgagor; or
(ii) on the security constituted by this Deed being
enforced in any way.
Except where expressly stated, no notice or action by any Mortgagee is
necessary for the charge to crystallise.
3.5 De-crystallisation
By notice to the Mortgagor, the Collateral Agent may at any time
release from the fixed charge any asset which has become subject to a
fixed charge under clause 3.4 (Crystallisation). That asset will then
again be subject to the floating charge and to the further operation of
that clause.
3.6 Dealing with proceeds
(a) Subject to the Finance Documents, the Mortgagor may deal with
the proceeds of any book or other debt (other than Accounts
Receivable) as it thinks fit where:
(i) the book or other debt arose in the ordinary course
of its business;
(ii) the proceeds do not arise from the disposal of, Lease
of, or grant of any interest in, an asset the subject
of the fixed charge;
(iii) the proceeds are received before the floating charge
crystallises in respect of all the Mortgaged Property
and before anything described in clause 3.4(a) occurs
with respect to the debt or those proceeds; and
(iv) no Finance Document provides otherwise.
(b) Subject to the Finance Documents, the Mortgagor shall ensure
that:
(i) all other proceeds of any book or other debt
(including Accounts Receivable); and
(ii) all the proceeds of any disposal of or other dealing
with any asset the subject of a fixed charge, which
are not immediately applied in acquiring another
similar asset
or in payment of the Secured Money or moneys ranking
ahead of the Secured Money,
are paid immediately into the Collection Account or, if there
is none, a separate account of which the Mortgagor has
notified the Collateral Agent.
(c) If the Collateral Agent requires, Authorised Officers of the
Collateral Agent will be the only signatories to the
Collection Account or the separate account referred to in
paragraph (b). No withdrawals may be made from it without the
approval of the Collateral Agent.
(d) The Mortgagor shall give notices and directions necessary or
requested by the Collateral Agent to ensure paragraphs (b) and
(c) are complied with.
(e) Failure by any Mortgagee to require the Mortgagor to comply
with this clause will not constitute a waiver.
(f) Without prejudice to paragraph (e), if for any reason any
Mortgagee waives or is taken to have waived the requirements
of this clause, the charge created by this Deed will still
operate as a fixed charge in respect of the relevant debt or
other asset which gives rise to the relevant moneys or
proceeds.
(g) In this clause proceeds includes moneys or consideration
payable, whether or not received by the Mortgagor.
3.7 Accounts Receivable
(a) Collection of Accounts Receivable
The Mortgagor will get in and realise the Accounts Receivable
belonging to such Mortgagor in the ordinary course of its
business as agent for and on behalf of the Collateral Agent by
instructing the debtors owing such Accounts Receivable to pay
all amounts due in respect of such Accounts Receivable into
the Collection Account.
(b) Collection Account
The Mortgagor may not withdraw all or any monies (including
interest) standing to the credit of the relevant Collection
Account in its name without the prior written consent of the
Collateral Agent (acting on the instructions of all the
Lenders).
(c) Restrictions on dealing with Accounts Receivable
The Mortgagor may not (except as provided by Section 7.02(n)
of the Financing Agreement) assign or otherwise transfer,
factor, discount, sell, release, compound, subordinate, defer,
declare a trust over or vary the terms of and not create or
permit to exist any Security Interest (other than a Security
Interest created pursuant to the Finance Documents or
expressly permitted by the terms of the Financing Agreement)
over any Accounts Receivable belonging to it or over the
Collection Account in its name or any interest in it.
3.8 Security Accounts
(a) Identity of bank or financial institution holding Security
Accounts
Any Security Account may be changed to any other bank or
financial institution at any time with the agreement of the
Mortgagor and the Collateral Agent (acting on the instructions
of
the Required Lenders) but, in each case, such change shall
only become effective upon the proposed new bank or financial
institution agreeing with the Collateral Agent (acting on the
instructions of the Required Lenders) and the Mortgagor, in a
manner satisfactory to the Collateral Agent, to hold such
Security Account pursuant to the terms of this Deed.
(b) Notice to bank or financial institution holding Security
Accounts
(i) The Mortgagor will forthwith give notice to the bank
or financial institution holding any Security Account
for the Mortgagor (and forthwith on any change in
their identity give notice to the new bank or
financial institution holding such Security Account)
of this Security Agreement substantially in the form
of in Schedule 1 and use all reasonable endeavours to
procure that such bank or financial institution or
any new bank or financial institution (as the case
may be) acknowledges such notice to the Collateral
Agent substantially in the form of Schedule 2.
(ii) If notices have already been given in relation to a
Security Account in accordance with this clause under
another Security Interest, they are not required to
be given again under this clause.
(c) Transfer of balances in Security Accounts
The amount (if any) standing to the credit of the Security
Accounts shall be transferred to the corresponding Security
Accounts maintained with any new bank or financial institution
appointed pursuant to paragraph (a) (Identity of bank or
financial institution holding Security Accounts) promptly upon
such appointment taking effect. The Mortgagor irrevocably
gives all authorisations and instructions necessary for any
such transfer to be made.
(d) Further perfection
The Mortgagor shall do all such things as the Collateral Agent
may request in order to facilitate any change of bank pursuant
to paragraph (a) (Identity of bank or financial institution
holding Security Accounts) or any transfer of credit balances
pursuant to paragraph (c) (Transfer of balances in Security
Accounts) (including, without limitation, the execution of
bank mandate forms) and the Collateral Agent is irrevocably
constituted the Mortgagor's attorney to do any such things
should the Mortgagor fail to do so.
4. Covenant and Warranty
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4.1 Covenant to pay and perform
(a) The Mortgagor shall duly and punctually pay the Secured Money.
After an Event of Default (whether or not it subsists) it will
pay all Secured Money on demand.
(b) The Mortgagor shall ensure that no Event of Default occurs.
(c) The Mortgagor shall duly and punctually comply with its
obligations under the Finance Documents and ensure that its
and each of the Borrowers' representations and warranties in
the Finance Documents are true and ensure that each Borrower
duly and punctually complies with its obligations under the
Finance Documents.
4.2 Warranty
(a) The Mortgagor represents and warrants that all its
representations and warranties in the Finance Documents are
true or, if not yet made, will be true when made.
(b) The Mortgagor represents and warrants that the value of its
present property charged under clause 2.1 does not exceed
$500,000.
5. Further Assurances
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5.1 Further assurances
Whenever the Collateral Agent requests the Mortgagor to do anything:
(a) for more satisfactorily mortgaging, assuring or securing the
Mortgaged Property to the Mortgagees or their nominee in a
manner not inconsistent with this Deed or any Collateral
Security; or
(b) for aiding in the execution or exercise of any Power,
the Mortgagor shall do it immediately at its own cost. It may include
registering this Deed, the execution or registering of any other
document or agreement, the delivery of documents or evidence of title
and the execution and delivery of blank transfers.
5.2 Interest in land
Without limiting clause 5.1 (Further assurances), if requested by the
Collateral Agent, on acquiring any interest in Material Real Property
the Mortgagor shall execute a legal or statutory mortgage over that
interest securing the Secured Money in the form and substance required
by the Collateral Agent. The Mortgagor shall use its best efforts to
register that mortgage.
5.3 Title documents
Without limiting clause 5.1, the Mortgagor shall deliver to the
Collateral Agent immediately all documents of title to interests in
Material Real Property received by it.
6. Appointment of Receiver
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6.1 Appointment
To the extent permitted by law, at any time after an Event of Default
(whether or not it is continuing) the Collateral Agent or any
Authorised Officer of the Collateral Agent may:
(a) appoint any person or any two or more persons jointly or
severally or both to be a receiver or receiver and manager of
all or any of the Mortgaged Property;
(b) remove any Receiver;
(c) appoint another Receiver in addition to or in place of a
Receiver; and
(d) fix or vary the remuneration of a Receiver.
6.2 Agent of Mortgagor
Subject to clause 6.4, every Receiver is the agent of the Mortgagor.
The Mortgagor alone is responsible for a Receiver's acts and defaults.
6.3 Receiver's powers
In addition to any powers granted by law, and except to the extent
specifically excluded by the terms of appointment, every Receiver has
power to do anything in respect of the Mortgaged Property that the
Mortgagor could do. That includes power to do any of the following.
(a) (Take possession and manage) Take possession of, get in and
manage the Mortgaged Property.
(b) (Sell)
(i) Sell any of the Mortgaged Property (whether or not
the Receiver has taken possession).
(ii) Without limitation any sale may be made:
(A) by public auction, private treaty or tender;
(B) for cash or on credit;
(C) in one lot or in parcels;
(D) either with or without special conditions or
stipulations as to title or time or mode of
payment of purchase money or otherwise;
(E) with power to allow the whole or any part of
the purchase money to be deferred (whether
with or without any security); and
(F) whether or not in conjunction with the sale
of any property by any person.
(c) (Options) Grant or take put or call options.
(d) (Lease) Lease any of the Mortgaged Property for any term
(whether or not the Receiver has taken possession).
(e) (Carry on business) Carry on or concur in carrying on any
business.
(f) (Acquire any asset) Acquire in any manner any asset (including
to take it on Lease). After that acquisition it will be
included in the Mortgaged Property.
(g) (Maintain and improve the Mortgaged Property) Anything to
maintain, protect or improve any of the Mortgaged Property or
to obtain income or returns from any of the Mortgaged Property
(including by development, sub-division, construction,
alteration, or repair, of any property or by pulling down,
dismantling or scrapping, any property).
(h) (Raise money)
(i) Borrow or raise any money from any Mortgagee or any
other person approved by the Collateral Agent;
(ii) give Guarantees; and
(iii) grant any Security Interest over any of the Mortgaged
Property to secure that money or Guarantee. That
Security Interest may rank in priority to or equally
with
or after, the security created by this Deed. It may
be given in the name of the Mortgagor or otherwise.
(i) (Lend) Lend money or provide financial accommodation.
(j) (Sever fixtures) Sever fixtures.
(k) (Employ) Employ or discharge any person as employee,
contractor, agent, professional adviser, consultant or
auctioneer for any purpose.
(l) (Compromise) Make or accept any arrangement or compromise.
(m) (Give receipts) Give receipts for money and other assets.
(n) (Authorisation) Apply for, take up, transfer or surrender any
Authorisation or any variation of any Authorisation.
(o) (Perform and enforce agreements)
(i) Perform or enforce;
(ii) exercise or refrain from exercising the Mortgagor's
rights and powers under; or
(iii) obtain the benefit in other ways of,
any documents or agreements or rights which form part of the
Mortgaged Property and any documents or agreements entered
into in exercise of any Power.
(p) (Vary and terminate agreements) Vary, rescind or terminate any
document or agreement (including surrendering or accepting the
surrender of Leases).
(q) (Take insolvency proceedings) Make debtors bankrupt, wind up
companies and do any thing in relation to any actual or
contemplated Liquidation (including attending and voting at
meetings of creditors and appoint proxies).
(r) (Take proceedings) Commence, defend, conduct, settle,
discontinue or compromise proceedings in the name of the
Mortgagor or otherwise.
(s) (Execute documents) Enter into and execute documents or
agreements on behalf of the Receiver or the Mortgagor. This
includes using the Mortgagor's seal and signing, accepting and
endorsing cheques, promissory notes and bills of exchange.
(t) (Operate bank accounts) Operate any bank account comprising
part of the Mortgaged Property and open and operate any
further bank account.
(u) (Surrender Mortgaged Property) Surrender, release or transfer
any of the Mortgaged Property or exchange it for other
property.
(v) (Promote companies) Promote the formation of companies with a
view to purchasing any of the Mortgaged Property or assuming
the obligations of the Mortgagor or otherwise.
(w) (Delegate) Delegate to any person approved by the Collateral
Agent any Powers (including delegation).
(x) (Have access) Have access to and make use of the premises,
plant, equipment, and records and accounting and other
services of the Mortgagor and the services of its staff.
(y) (Vote) Exercise any voting or other rights or powers in
respect of any of the Mortgaged Property and do anything in
relation to Marketable Securities.
(z) (Other outgoings) Pay any outgoing or indebtedness of the
Mortgagor or any other person.
(aa) (Security Interests) Redeem any Security Interest or acquire
it and any debt secured by it.
(bb) (Make calls) Make calls on the members of the Mortgagor in
respect of any Unpaid Capital.
(cc) (Insure) Take out insurance and make, enforce, compromise and
settle all claims in respect of insurance.
(dd) (Incidental power) Do anything incidental to the exercise of
any other Power.
All of the above paragraphs are to be construed independently. None
limits the generality of any other.
6.4 Receiver appointed after commencement of winding up
The power to appoint a Receiver may be exercised even if:
(a) an order is made or a resolution is passed to wind up the
Mortgagor; and
(b) a receiver appointed in those circumstances may not, or may
not in some respects, act as the agent of the Mortgagor.
6.5 Powers exercisable by the Collateral Agent
Whether or not a Receiver has been appointed, to the extent permitted
by law the Collateral Agent may exercise any Power of a Receiver at any
time after an Event of Default (whether or not it is continuing) in
addition to any Power of the Mortgagees and without giving notice. It
may exercise those Powers and its Powers without taking possession or
being liable as mortgagee in possession. Without limitation it may
exercise those Powers and its Powers directly or through one or more
agents. In the latter event anything done or incurred by an agent will
be taken to be done or incurred by the Collateral Agent.
6.6 Withdrawal
The Collateral Agent may give up possession of any Mortgaged Property
and withdraw any receivership at any time.
7. Power of Attorney
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(a) For valuable consideration and by way of security the
Mortgagor irrevocably appoints each Authorised Officer of the
Collateral Agent severally its attorney to do anything which:
(i) the Mortgagor is obliged, but has failed, to do under
or in relation to any Finance Document; or
(ii) any Mortgagee or any Receiver is authorised or
empowered to do under any Finance Document or any
law, but only at the times that that Mortgagee or a
Receiver (if a Receiver had been appointed) would
have been able to do it.
(b) Without limitation, the Attorney may at any time:
(i) do anything which in the opinion of the Collateral
Agent or the Attorney is necessary or expedient to
secure, preserve, perfect or give effect to the
security contained in this Deed (including anything
under clause 8 (Completion of blank securities) or 9
(Performance of Mortgagor's obligations)) and for
this purpose, without limitation, any of them may
execute a legal mortgage, transfer, assignment and
other assurance of any Mortgaged Property in favour
of any Mortgagee, any purchaser or any nominee; and
(ii) delegate the Attorney's powers (including
delegation).
(c) No Attorney appointed under this Deed may act inconsistently
with this Deed or any other Finance Document.
8. Completion of Blank Securities
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If an Event of Default has occurred (whether or not it is continuing),
the Collateral Agent, any Authorised Officer of the Collateral Agent,
any Receiver or any Attorney may complete any document executed by or
on behalf of the Mortgagor and deposited with any Mortgagee. It may
complete it in favour of any Mortgagee, any purchaser or any nominee.
9. Performance of Mortgagor's Obligations
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If at any time the Mortgagor fails duly to perform any obligation in
any Finance Document, the Collateral Agent or any person it authorises
may do anything which in its opinion is necessary or expedient to make
good or to attempt to make good that failure to its satisfaction.
10. Inspection
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The Mortgagor acknowledges that representatives of the Collateral Agent
may visit the Mortgagor and conduct audits, inspections, valuations and
field examinations of the Mortgagor and the Mortgaged Property at any
time and from time to time in a manner so as to not unduly disrupt the
business of the Mortgagor. The Mortgagor agrees to pay:
(a) US$1,500 or its equivalent in Australian dollars per day per
examiner plus the examiner's out-of-pocket costs and
reasonable expenses incurred in connection with all such
visits, audits, inspections, valuations and field
examinations; and
(b) the cost of all visits, audits, inspections, valuations and
field examinations conducted by a third party on behalf of the
Collateral Agent,
provided, however, that so long as no Default or Event of Default has
occurred and is continuing:
(c) the Mortgagor shall only be obligated to pay for fees and
charges incurred for:
(i) valuations performed no more frequently than 1 time
per year; and
(ii) audits performed no more frequently than 4 times per
year; and
(d) the Mortgagor's aggregate liability for the costs of all
audits, valuations and field examinations referred to in this
clause shall not exceed US$150,000 or its equivalent in
Australian dollars in any Fiscal Year.
The Mortgagor will do everything in its power to assist that inspection
and copying and ensure that its employees and officers and its
Subsidiaries and their employees and officers do the same.
11. Statutory Powers
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11.1 Powers in augmentation
The powers conferred on a mortgagee by law:
(a) are in addition to the Powers conferred by this Deed or any
Collateral Security;
(b) (to the extent permitted by law) may be exercised by the
Collateral Agent immediately an Event of Default occurs and at
any time subsequently; and
(c) are excluded or varied only so far as they are inconsistent
with the express terms of this Deed or any Collateral
Security.
11.2 Leasing
The Mortgagor may not surrender any Lease, accept any surrender of
Lease or to exercise any power of Leasing conferred on the Mortgagor by
law except as expressly permitted or contemplated in any Finance
Document.
11.3 Notice not required
To the extent permitted by law (but without prejudice to any express
requirement in a Finance Document):
(a) the Mortgagor dispenses with any notice or lapse of time
required by law before enforcing this Deed or any Collateral
Security or exercising any Power; and
(b) without limitation the Mortgagor agrees that:
(i) no Mortgagee is required to give notice to any person
before enforcement or exercise;
(ii) any law (including s57 of the Real Property Act 1900
(NSW) and s111 of the Conveyancing Act 1919 (NSW))
requiring the giving of notice or the compliance with
a procedure or the lapse of time before enforcement
or exercise is excluded; and
(iii) where a law which cannot be excluded requires a
period of notice to be given but allows the period to
be specified or changed, that period is one day.
12. Application of Moneys Received
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12.1 Order
To the extent permitted by law, all moneys received by a Receiver, an
Attorney or any Mortgagee under or by virtue of this Deed shall be
applied in the manner and order determined by the Collateral Agent. If
the Collateral Agent does not make a determination, the following order
will apply.
(a) First: all costs, charges and expenses of any Mortgagee or a
Receiver or Attorney which are incurred in or are incidental
to the exercise or performance or attempted exercise or
performance of a Power or otherwise in relation to this Deed
or any Collateral Security.
(b) Second: any other outgoings which the Receiver, Attorney or
the Collateral Agent thinks fit to pay.
(c) Third: the Receiver's remuneration.
(d) Fourth: to each holder of a Security Interest of which the
Collateral Agent is aware and which has priority over this
Deed in relation to the relevant Mortgaged Property, to the
extent, and in order, of priority.
(e) Fifth: to the Collateral Agent for the account of the
Mortgagees towards satisfaction of the Secured Money.
(f) Sixth: to each holder of a Security Interest of which the
Collateral Agent is aware and which ranks after this Deed in
relation to the relevant Mortgaged Property, to the extent,
and in order, of priority.
(g) Seventh: the surplus (if any) belongs to the Mortgagor.
The surplus will not carry interest. If it pays the surplus to the
credit of an account in the name of the Mortgagor with any bank
carrying on business in Australia, the Receiver, Mortgagee or Attorney
(as the case may be) will be under no further liability in respect of
it.
12.2 Moneys actually received
In applying any moneys towards satisfaction of the Secured Money the
Mortgagor will be credited only with the money available for that
purpose which is actually received by the relevant Mortgagee. The
credit will date from the time of receipt.
12.3 Amounts contingently due
If any Secured Money is contingently owing to any Mortgagee at the time
of a distribution of an amount under clause 12.1, the Collateral Agent
may retain any of that amount. If it does, it shall place the amount
retained on short term interest bearing deposit until the relevant
Secured Money becomes actually due or ceases to be contingently owing,
and the Collateral Agent shall then:
(a) pay to itself the amount which becomes actually due to it; and
(b) apply the balance of the amount retained (together with
interest earned on the deposit) in accordance with clause
12.1.
12.4 Notice of subsequent Security Interests
(a) If any Mortgagee receives actual or constructive notice of a
subsequent Security Interest affecting any Mortgaged Property
it may open a separate account in the name of the Mortgagor or
the relevant Borrower in the books of that Mortgagee.
(b) If that Mortgagee does not open a new account it will be
treated as if it had done so at the time it received actual or
constructive notice of the Security Interest.
(c) From the time the new account is opened or is taken to be
opened:
(i) all advances and accommodation made available by that
Mortgagee to the Mortgagor or the relevant Borrower;
(ii) all payments and repayments made by the Mortgagor or
the relevant Borrower to that Mortgagee; and
(iii) moneys to be applied towards the Secured Money under
clause 12.1(e),
will be or will be taken to be debited or credited, as
appropriate, to the new account. Payments, repayments and
other moneys will only be applied in reduction of other
Secured Money to the extent that there is no debit balance in
that account.
12.5 Conversion of currencies on application
For the purpose of making an application under clause 12.1 any
Mortgagee, Receiver or Attorney may purchase one currency with another,
whether or not through an intermediate currency, whether spot or
forward, in the manner and at the time it thinks fit.
13. Other Security Interests over Mortgaged Property
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(a) Any Mortgagee, Receiver or Attorney may rely on the
certificate of a holder of another Security Interest affecting
or purporting to affect the Mortgaged Property as to the
amount and property secured by the Security Interest.
(b) The Collateral Agent or any Receiver may pay or agree to pay
the amount certified by the holder of a Security Interest or
purported Security Interest to be necessary to discharge it or
some of the indebtedness secured by it or to acquire it. From
the date of payment that amount will be part of the Secured
Money and the Mortgagor shall indemnify the Collateral Agent
(or if other Mortgagees indemnify the Collateral Agent, those
other Mortgagees) and the Receiver against that amount. This
applies whether or not that Security Interest or purported
Security Interest was valid or prior, equal or subsequent
ranking or the property or moneys stated in the certificate
were secured by it.
14. Protection of Mortgagee, Receiver and Attorney
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To the extent permitted by law, no Mortgagee, Receiver or Attorney will
be liable:
(a) in respect of any conduct, delay, negligence or breach of duty
in the exercise or non-exercise of a Power; or
(b) for any loss (including consequential loss) which results,
except where it arises from its deliberate misconduct.
15. Protection of Third Parties
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15.1 No enquiry
No party to any Dealing (as defined below) and no person asked to
register a Dealing:
(a) is bound to enquire:
(i) whether an Event of Default has occurred or whether
this Deed has become enforceable;
(ii) whether a person who is, or, purports or is purported
to be, a Receiver or Attorney is duly appointed;
(iii) as to the amount of Secured Money and whether Secured
Money is due and payable; or
(iv) in any other way as to the propriety or regularity of
the Dealing; or
(b) is affected by express notice that the Dealing is unnecessary
or improper.
For the protection of any party to a Dealing or a person registering a
Dealing, the Dealing will be taken to be authorised by this Deed and
will be valid accordingly, even if there is any irregularity or
impropriety in the Dealing.
In this clause a Dealing is:
(c) any payment, or any delivery or handing over of an asset, to;
or
(d) any acquisition, incurring of Indebtedness, receipt, sale,
Lease, disposal or other dealing, by,
any Mortgagee, Receiver or Attorney, or any person who purports or is
purported to be a Receiver or Attorney.
15.2 Receipt
The receipt of any Authorised Officer of any Mortgagee, Receiver or
Attorney (or person who purports, or is purported, to be a Receiver or
Attorney) for any moneys or assets payable to or receivable or received
by it exonerates the person paying those moneys or handing over that
asset from being concerned as to their application, or from being
liable or accountable for their loss or misapplication.
16. Expenses, Indemnity
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16.1 Expenses
The Mortgagor shall reimburse:
(a) the Collateral Agent for its expenses in relation to the
preparation, execution and completion of the Finance Documents
and any subsequent consent, agreement, approval, waiver or
amendment; and
(b) each Mortgagee, Receiver and Attorney for its expenses in
relation to:
(i) any actual or contemplated enforcement of the Finance
Documents, or the actual or contemplated exercise,
preservation or consideration of any Powers under the
Finance Documents or in relation to the Mortgaged
Property; and
(ii) any enquiry by a Government Authority concerning the
Mortgagor or the Mortgaged Property or a transaction
or activity the subject of the Finance Documents or
in connection with which, financial accommodation or
funds raised under a Finance Document are used or
provided.
This includes legal costs and expenses (including in-house lawyers
charged at their usual rate) on a full indemnity basis, expenses
incurred in any review or environmental audit or in retaining
consultants to evaluate matters of material concern to that Mortgagee,
any Receiver or Attorney, and administrative costs including time of
its executives (whose time and costs are to be charged at reasonable
rates).
16.2 Indemnity
Subject to section 12.15 of the Financing Agreement, the Mortgagor
shall indemnify each Mortgagee, Receiver and Attorney against any loss,
cost, liability or expense (including legal costs on a full indemnity
basis) which that Mortgagee (or any officer or employee of that
Mortgagee), Receiver or Attorney incurs as a result of or in connection
with:
(a) any Event of Default or breach of any Finance Document;
(b) any exercise or attempted exercise of any Power or any failure
to exercise any Power; or
(c) the Mortgaged Property or the existence of any interest in or
control or Power with respect to the Mortgaged Property.
16.3 Amounts in foreign currency
Where an amount to be reimbursed or indemnified against is denominated
in another currency, if the person to be reimbursed or indemnified so
requests, the Mortgagor shall reimburse or indemnify it against the
amount of Australian dollars which the person certifies that it used to
buy the relevant amount of the other currency in accordance with its
normal procedures. If the person does not so request, the Mortgagor
shall reimburse or indemnify it in the relevant currency.
17. Currency Indemnity
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17.1 General
The Mortgagor shall indemnify each Mortgagee against any deficiency
which arises whenever for any reason (including as a result of a
judgment or order or Liquidation):
(a) that Mortgagee receives or recovers an amount in one currency
(the Payment Currency) in respect of an amount denominated
under a Finance Document in another currency (the Due
Currency); and
(b) the amount actually received or recovered by that Mortgagee
under its normal practice when it converts the Payment
Currency into the Due Currency is less than the relevant
amount of the Due Currency.
17.2 Reimbursement
Where an amount to be reimbursed or indemnified against under a Finance
Document is denominated in a currency other than US dollars, if any
Mortgagee so requests, the Mortgagor shall reimburse or indemnify it
against the amount of US dollars which the Mortgagee certifies that it
used to buy the relevant amount of the other currency in accordance
with its normal procedures. If a Mortgagee does not so request, the
Mortgagor shall reimburse or indemnify it in that other currency.
18. Interest on Overdue Amounts
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18.1 Accrual
Interest accrues on each unpaid amount which is due and payable by the
Mortgagor under or in respect of any Finance Document (including
interest under this clause):
(a) on a daily basis up to the date of actual payment from (and
including) the due date or, in the case of an amount payable
by way of reimbursement or indemnity, the date of disbursement
or loss, if earlier;
(b) both before and after judgment (as a separate and independent
obligation); and
(c) at the rate provided in clause 2.04 of the Financing
Agreement,
except where the relevant Finance Document provides otherwise.
18.2 Payment
The Mortgagor shall pay interest accrued under this clause on demand
and on the last Business Day of each calendar quarter. That interest is
payable in the currency of the unpaid amount on which it accrues.
19. Certificate as to Amount of Secured Money
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A certificate signed by an Authorised Officer of the Collateral Agent
will be conclusive evidence against the Mortgagor, in the absence of
manifest error:
(a) as to the amount of Secured Money stated in the certificate;
(b) that a document specified in that certificate is a Finance
Document; and
(c) that the Collateral Agent or a Mortgagee is of the opinion
stated in the certificate.
20. Survival of Obligations
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(a) (Representations and warranties) Each representation or
warranty in a Finance Document survives the execution and
delivery of the Finance Documents and the provision of
financial accommodation.
(b) (Indemnity) Each indemnity, reimbursement or similar
obligation in a Finance Document:
(i) is a continuing, separate and independent obligation;
(ii) is payable on demand; and
(iii) survives termination or discharge of the relevant
Finance Document and repayment of financial
accommodation.
21. Continuing Security
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Each of this Deed and each Collateral Security is a continuing security
despite any settlement of account, intervening payment or anything else
until a final discharge of this Deed and each Collateral Security has
been given to the Mortgagor.
22. Other Securities
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No Power and nothing in this Deed or any Collateral Security merges in,
or in any other way prejudicially affects or is prejudicially affected
by:
(a) any other Security Interest; or
(b) any judgment, right or remedy against any person,
which any Mortgagee or any person claiming through any Mortgagee may
have at any time.
23. Waivers, Remedies Cumulative
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(a) No failure to exercise and no delay in exercising a Power
operates as a waiver. Nor does any single or partial exercise
of a Power preclude any other or further exercise of that or
any other Power.
(b) Powers in this Deed and each Collateral Security are in
addition to, and do not exclude or limit, any right, power or
remedy provided by law.
24. Consents and Opinion
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Except where expressly stated any Mortgagee may give or withhold, or
give conditionally, approvals and consents, may be satisfied or
unsatisfied, may form opinions, and may exercise its Powers, at its
absolute discretion.
25. Severability of Provisions
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(a) Any provision of this Deed or any Collateral Security which is
prohibited or unenforceable in any jurisdiction is ineffective
as to that jurisdiction to the extent of the prohibition or
unenforceability. That does not invalidate the remaining
provisions of this Deed or any Collateral Security nor affect
the validity or enforceability of that provision in any other
jurisdiction.
(b) Without limiting the generality of paragraph (a):
(i) the definition of Secured Money does not include any
liability so long as and to the extent that the
inclusion of that liability would avoid, invalidate
or render
ineffective clause 2 (Charge) or 3 (Nature of charge)
or the security constituted by this Deed; and
(ii) the definition of the Mortgaged Property does not
include any asset so long as and to the extent that
the inclusion of that asset would invalidate, avoid
or render ineffective clause 2 (Charge) or 3 (Nature
of charge) or the security constituted by this Deed.
The Mortgagor shall use its best efforts to satisfy any
condition or obtain any consent necessary to include that
liability or asset validly under this Deed.
26. Moratorium Legislation
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To the full extent permitted by law all legislation which at any time
directly or indirectly:
(a) lessens, varies or affects in favour of the Mortgagor any
obligation under this Deed or any Collateral Security; or
(b) delays, prevents or prejudicially affects the exercise by any
Mortgagee, any Receiver or Attorney of any Power,
is excluded from this Deed and any Collateral Security.
27. Assignments
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(a) Subject to the other Finance Documents, a Mortgagee may assign
its rights under this Deed and each Collateral Security. If
this Deed is assigned, the Secured Money will include all
actual and contingent liability of the Mortgagor and each
Borrower to the assignee, whether or not it was incurred
before the assignment or in contemplation of it.
(b) The Mortgagor may only assign or transfer any of its rights or
obligations under this Deed or any Collateral Security with
the prior written consent of the Collateral Agent.
28. Notices
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All notices, requests, demands, consents, approvals, agreements or
other communications to or by a party to this Deed:
(a) must be in writing signed by an Authorised Officer of the
sender; and
(b) will be taken to be given or made when delivered, received or
left at the address or fax number of the recipient shown in
this Deed or to any other address or fax number which it may
have notified the sender but, if delivery or receipt is on a
day on which business is not generally carried on in the place
to which the communication is sent or is later than 4pm (local
time), it will be taken to have been given or made at the
commencement of business on the next day on which business is
generally carried on in that place.
29. Authorised Officers
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The Mortgagor irrevocably authorises each Mortgagee to rely on a
certificate by a person purporting to be its director or secretary as
to the identity and signatures of its Authorised Officers. The
Mortgagor warrants that those persons have been authorised to give
notices and communications under or in connection with the Finance
Documents.
30. Governing Law and Jurisdiction
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This Deed is governed by the laws of New South Wales. The Mortgagor
submits to the non-exclusive jurisdiction of courts exercising
jurisdiction there.
31. Third Party Provisions
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31.1 Security not to be affected
None of this Deed, any Collateral Security or any Power nor the
obligations of the Mortgagor under this Deed will be affected by
anything which but for this provision might operate to release,
prejudicially affect or discharge them or in any way relieve the
Mortgagor from any obligation including:
(a) the grant to any person of any time, waiver or other
indulgence, or the discharge or release of any person;
(b) any transaction or arrangement that may take place between any
Mortgagee and any person;
(c) the Liquidation of any person;
(d) any Mortgagee becoming a party to or bound by any compromise,
moratorium, assignment of property, scheme of arrangement,
composition of debts or scheme of reconstruction by or
relating to any person;
(e) any Mortgagee exercising or delaying or refraining from
exercising any other security or any right, power or remedy
conferred on it by law or by any Finance Document or by any
other document or agreement with any person;
(f) the amendment, variation, novation, replacement, rescission,
invalidity, extinguishment, repudiation, avoidance,
unenforceability, frustration, failure, expiry, termination,
loss, release, discharge, abandonment, assignment or transfer,
in whole or in part and with or without consideration, of any
Finance Document, or of any other Security Interest or
Guarantee or other document or agreement held by any Mortgagee
at any time or of any right, obligation, power or remedy;
(g) the taking or perfection of or failure to take or perfect a
Security Interest or Guarantee or other document or agreement;
(h) the failure by any person or any Mortgagee to notify the
Mortgagor of any default by any person under any Finance
Document or any other agreement with any Mortgagee;
(i) any Mortgagee obtaining a judgment against any person for the
payment of any Secured Money;
(j) any legal limitation, disability, incapacity or other
circumstance relating to any person;
(k) any change in circumstance (including any change in the
members or constitution of any person);
(l) any Guarantee or Security Interest or other document or
agreement not being valid or executed by, or binding on, any
person; or
(m) any increase in the Secured Money for any reason (including as
a result of anything referred to above),
whether with or without the consent of the Mortgagor. References to any
person include each Borrower or any other person. None of the above
paragraphs limits any of the others.
31.2 Principal and independent obligation
This Deed and each Collateral Security is a principal and independent
obligation. Except for stamp duty purposes, it is not ancillary or
collateral to any other Security Interest, right or obligation.
31.3 No marshalling
No Mortgagee is obliged to marshal or appropriate in favour of the
Mortgagor or to exercise, apply or recover:
(a) any Security Interest or Guarantee (including any Finance
Document) held by that Mortgagee at any time; or
(b) any of the funds or assets that Mortgagee may be entitled to
receive or have a claim on.
31.4 No competition
Until the Secured Money has been irrevocably paid and discharged in
full the Mortgagor is not entitled to and shall not:
(a) be subrogated to any Mortgagee or claim the benefit of any
Security Interest or Guarantee held by any Mortgagee at any
time;
(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 the Borrower or any other
person who gives a Guarantee or Security Interest in respect
of any Secured Money; or
(c) have or claim any right of contribution or indemnity from any
other person who gives a Guarantee or Security Interest in
respect of any Secured Money.
The receipt of any distribution, dividend or other payment by any
Mortgagee out of or relating to any Liquidation will not prejudice the
right of any Mortgagee to recover the Secured Money by enforcement of
this Deed and each Collateral Security.
31.5 Suspense account
In the event of the Liquidation of the Borrower or any other person,
the Mortgagor authorises each Mortgagee:
(a) to prove for all moneys received by any Receiver, Attorney or
Mortgagee under or by virtue of this Deed or any Collateral
Security; and
(b) (i) to retain and carry to a suspense account; and
(ii) to appropriate at the discretion of that Mortgagee;
any dividend received in the Liquidation of the Borrower or
any other person and any other money received in respect of
the Secured Money,
until that Mortgagee has been paid the Secured Money in full.
31.6 Rescission of payment
Whenever for any reason (including under any law relating to
Liquidation, fiduciary obligations or the protection of creditors):
(a) all or part of any transaction of any nature (including any
payment or transfer) made during the term of this Deed which
affects or relates in any way to the Secured Money is void,
set aside or voidable;
(b) any claim that anything contemplated by paragraph (a) is
upheld, conceded or compromised; or
(c) any Mortgagee is required to return or repay any money or
asset received by it under any such transaction or the
equivalent in value of that money or asset,
each Mortgagee will immediately become entitled against the Mortgagor
to all rights in respect of the Secured Money and the Mortgaged
Property which it would have had if all or the relevant part of the
transaction or receipt had not taken place. The Mortgagor shall
indemnify the Mortgagee against any resulting loss, cost or expense.
This clause continues to apply after this Deed is discharged.
31.7 Variation
Without limiting the above provisions, this Deed and any Collateral
Security covers the Secured Money as varied from time to time including
as a result of:
(a) any new Finance Document or any amendment to any Finance
Document; or
(b) the provision of further accommodation to the Borrower,
and whether or not with the consent of or notice to the Mortgagor.
31.8 Indemnity
If any Secured Money (including moneys which would have been Secured
Money if they were recoverable) is not recoverable from the Borrower
for any reason, including any legal limitation, disability or
incapacity affecting the Borrower or an obligation in any Finance
Document being or becoming unenforceable, void or illegal and whether
or not:
(a) any transaction relating to the Secured Money was void or
illegal or has been subsequently avoided; or
(b) any matter or fact relating to that transaction was or ought
to have been within the knowledge of any Mortgagee,
the Mortgagor shall indemnify each Mortgagee in respect of that money
and shall pay that money to the Collateral Agent for the account of the
relevant Mortgagees.
32. Set-Off
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(a) The Mortgagor irrevocably authorises each Mortgagee if an
Event of Default or Default is subsisting to apply any credit
balance in any currency (whether or not matured) in any of its
accounts with any branch of that Mortgagee towards
satisfaction of any sum at any time due and payable by it to
that Mortgagee under or in relation to any Finance Document.
No Mortgagee is obliged to make the application.
(b) Any Mortgagee may effect currency exchanges appropriate to
implement that application. 33. Counterparts
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This Deed may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
34. Acknowledgement by Mortgagor
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The Mortgagor confirms that:
(a) it has not entered into any Finance Document in reliance on,
or as a result of, any conduct of any kind of or on behalf of
any Mortgagee or any Related Entity of any Mortgagee
(including any advice, warranty, representation or
undertaking); and
(b) no Mortgagee nor any Related Entity of any Mortgagee is
obliged to do anything (including disclose anything or give
advice),
except as expressly set out in the Finance Documents or in writing duly
signed by or on behalf of the relevant Mortgagee or Related Entity.
EXECUTED and delivered as a deed.
Signed Sealed and Delivered by Foster Wheeler
(QLD) Pty Limited:
/s/ IAN GORDON PARK /s/ NICHOLAS CHRISTOPHER HOLT
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Director Signature Director/Secretary Signature
Ian Gordon Park Nicholas Christopher Holt
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Print Name Print Name
SABERASU JAPAN INVESTMENTS II B.V.
By: /s/ BEN HUMMEL
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Name: Ben Hummel
Title: Managing Director
By: /s/ JEROEN ZWEERTS
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Name: Jeroen Zweerts
Title: Managing Director