<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15 (d) OF THE
SECURITIES AND EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) June 19, 1998
OMEGA WORLDWIDE, INC.
---------------------
(Exact name of registrant as specified in its charter)
MARYLAND 38-3382537
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(State or other jurisdiction (Commission (IRS Employer
of Incorporation) File No.) Identification No.)
905 WEST EISENHOWER CIRCLE, SUITE 101, ANN ARBOR, MI 48103
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(Address of principal executive officers) (Zip Code)
Registrant's telephone number, including area code (734) 747-9791
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NOT APPLICABLE
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(Former name or former address, if changed since last report.)
<PAGE> 2
Item 5 Other Events
In a press release on June 25, 1998, Omega Worldwide, Inc. (the Company)
announced it acquired Assisted Living Unit Trust (ALUT), an Australian property
trust that owns ten nursing homes having 733 licensed nursing beds and 480
assisted living units in New South Wales, Australia. The Company acquired ALUT
on June 19, 1998 from FAI Insurances Limited, an Australian insurance company,
and its subsidiary Premier Care Australia (Holdings) Pty Limited, for an equity
investment of approximately $3,000,000 (A$5 million). ALUT's investment in
facilities approximates $30,000,000 and the purchase price for ALUT's total
assets is to be paid on a deferred basis in June 1999. To secure payment of the
deferred purchase price, ALUT and the Company secured from ABN AMRO Australia
Limited (the Bank) a bank accepted bill in favor of the sellers by depositing
with the Bank the sum of $9,000,000 (A$15 million).
Concurrent with the acquisition of ALUT by the Company, ALUT's name was changed
to Principal Healthcare Finance Trust (the Trust). The Company intends to seek
local investment for approximately 50% of the ownership of the Trust and will
seek senior and subordinated debt financing to fund the balance of the deferred
payments due in 1999.
The Trust has entered into a triple-net lease agreement for the nursing homes
and assisted living units with an affiliate of Moran Health Care Group Pty
Limited, which is currently the largest operator of long-term care and assisted
living facilities in Australia. The initial rents payable under the thirty year
lease equal $3,000,000 (A$5 million) annually and are subject to an annual
minimum increase of not less than 2% nor more than 6%. Rent payments will
commence upon payment of the deferred purchase price in 1999.
The Company has created a management contract relationship between the Trust and
the Company by which the responsibility for day-to-day management,
underwriting, marketing and capital markets activities are devolved upon the
Company and in which the Company expects to collect annual fee income at .9% of
invested assets. The contract also provides for a management incentive fee if
the Trust achieves at least a 20% earnings growth from one year to the next.
The Company intends to submit the contract for Board approval on July 15, 1998.
The investment in the Trust's real estate assets represents approximately 15% of
total assets at the date of acquisition after taking into account the
Company's proportionate share (33.375%) of assets of Principal Healthcare
Finance Limited. Financial information related to the Company's investment in
the Trust and the related purchase of real estate subject to a triple-net
lease by the Trust is attached as Appendix A.
<PAGE> 3
Appendix A
The following tables set forth certain unaudited historical summary
financial information for the Company as adjusted to give effect to the
contribution to the Company of common stock and Subordinated Loan of Principal
Healthcare Finance Limited (Principal) by Omega Healthcare Investors, Inc.
(Omega) which occurred on April 2, 1998 and on a pro forma basis for the year
ended September 30, 1997 to give effect to the Company's acquisition of
facilities subject to long-term triple-net leases as if it had been completed on
October 1, 1996. The Company has selected September 30 as its fiscal year end.
The Company commenced operations concurrent with the contribution of assets by
Omega on April 2, 1998. It had no operating activity prior to that date.
The pro forma financial information is not necessarily indicative of what
the Company's financial position or results of operations would have been
assuming the above events actually occurred as of the date indicated, nor do
they purport to project the Company's financial position or results of
operations at any future date or for any future period.
OMEGA WORLDWIDE, INC.
CONDENSED PRO FORMA BALANCE SHEET
SEPTEMBER 30, 1997
(UNAUDITED)
<TABLE>
<CAPTION>
PRO FORMA
HISTORICAL AS ADJUSTED ADJUSTMENTS (D) PRO FORMA
---------- ----------- ---------- ---------
<S> <C> <C> <C> <C>
ASSETS
Cash $ 0 $27,376,000 (B) $ (9,000,000) $ 18,376,000
Restricted Cash 9,000,000 9,000,000
------------ ----------- ----------- ------------
CURRENT ASSETS 0 27,376,000 0 27,376,000
Land and Buildings subject to triple-net lease 27,777,800 27,777,800
Investment in Principal Healthcare
Finance Limited
Subordinated loan 23,805,000 (A) 23,805,000
Common stock 5,296,612 (A) 5,296,612
Omega (UK) Limited and other assets (Net) 150,000 (A) 150,000
------------ ----------- ----------- ------------
Total Assets $ 0 $56,627,612 $ 27,777,800 $ 84,405,412
============ =========== =========== ============
CURRENT LIABILITIES
Non-interest bearing deferred purchase $ 27,777,800 $ 27,777,800
obligation
SHAREHOLDERS' EQUITY
Preferred Stock $ 0 $ 2,600,000 2,600,000
Common stock 0 1,225,000 (C) 1,225,000
Paid-in Capital 0 52,802,612 (C) 52,802,612
------------ ----------- ----------- ------------
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY $ 0 $56,627,612 $ 27,777,800 $ 84,405,412
============ =========== =========== ============
</TABLE>
(A) Contribution by Omega of investments in Principal, recorded at Omega's
carrying value, in exchange for 8,499,000 fully paid common shares and 260,000
shares of Class B preferred stock of Omega Worldwide, Inc. The subordinated loan
earns interest at the rate of 11.83% with annual increases of 3% and is due in
December 2000. The common stock investment represents 33.375% of the outstanding
voting stock of Principal. A currency swap arrangement was entered into in order
to hedge the currency risk associated with the Company's investment in the
United Kingdom. The carrying value of the investment in Principal is based on
the rate established in the forward exchange contract and therefore no amount is
assigned to the swap arrangement.
(B) Proceeds from the issuance of 3,750,000 shares of the Company to its
shareholders at $7.50 per share in connection with the IPO and rights offering
(less offering and registration costs of $750,000), plus proceeds from initial
subscription for 1,000 shares by Omega Healthcare Investors, Inc.
(C) Exchange of the Company's shares for contributed assets (8,499,000 shares
and 260,000 preferred shares with an aggregate liquidation preference of
$2,600,000) as described in (A) and issuance by the Company of 3,751,000 shares
as described in (B).
(D) Acquisition of the Trust, including its facilities and deferred payment
obligation. The Company contributed $3,000,000 in exchange for all of the shares
of the Trust. The terms of the purchase include a deferred acquisition price of
$30,000,000 (net amount of $27,777,800 after imputed interest at an 8%
discounted rate) payable June 20, 1999. A letter of credit has has been drawn
for the benefit of the seller in the amount of $30,000,000 and the Company and
Trust have deposited $9,000,000 with a bank to secure its reimbursement
obligation should the seller seek to collect under the terms of the letter of
credit. The investment in the Trust's real estate assets represents
approximately 15% of total assets at the date of acquisition after consideration
of the Company's proportionate share of Principal's assets.
<PAGE> 4
Omega Worldwide, Inc.
Condensed Pro Forma Statement of Income
Year Ended September 30, 1997
(Unaudited)
<TABLE>
<CAPTION>
Pro Forma
Historical As Adjusted Adjustments (G) Pro Forma
---------- ---------------- ----------- ---------
<S> <C> <C> <C> <C>
Revenue
Rent Income $3,925,000 $3,925,000
Advisory fees $1,511,000 (A) 1,511,000
Interest - Subordinated Loan 2,829,000 (B) 2,829,000
------------- ------------- ------------
Total Revenue 0 4,340,000 3,925,000 8,265,000
Expenses
Imputed Interest 2,223,000 2,223,000
Depreciation 637,000 637,000
Costs of Services Provided 1,103,000 (C) 1,103,000
General and Administrative 480,000 (D) 480,000
--------- ------------- ------------- ------------
Total Expenses 0 1,583,000 2,860,000 4,443,000
--------- ------------- ------------- ------------
0 2,757,000 1,065,000 3,822,000
Equity in loss of Principal Healthcare
Finance Limited 0 (339,000)(E) (339,000)
--------- ------------- ------------- ------------
Income before income taxes 0 2,418,000 1,065,000 3,483,000
Provision for income taxes 0 (937,000)(F) (383,000) (1,320,000)
--------- ------------- ------------- ------------
Net income before preferred stock
dividends $0 $1,481,000 $682,000 $2,163,000
Preferred stock dividends (208,000) - (208,000)
------------- ------------- ------------
Net Income applicable to common stock $1,273,000 $682,000 $1,955,000
------------- ============= ------------
Common Shares Outstanding 12,250,000
Net income per share $0.16
------------
</TABLE>
(A) Represents fees pursuant to Management Agreement at .9% of the Aggregate
Book Value of Invested Assets.
(B) Represents interest income on the subordinated loan to Principal which
currently bears interest at 11.8%.
(C) Represents historical costs of services provided by Omega (UK) Limited for
the year ended September 30, 1997. Omega (UK) Limited is the primary
service provider for activities related to Principal. The reported amount
represents direct costs incurred in the delivery of the services for which
fee income has been recognized.
(D) Comprises allocated share of costs of Omega pursuant to the provisions of a
Services Agreement between Omega and the Company. Indirect costs incurred
by Omega for the year ended September 30, 1997 are allocated based on the
relationship of assets under the Company's management to the combined total
of those assets and Omega's assets.
The Company's direct administrative costs, including the cost the Company
expects it will incur on its own behalf for state taxes, investor
relations, legal and accounting and similar items, are estimated to be
approximately $650,000 to $700,000. Additionally, general and
administrative cost expected to be incurred by the Trust are estimated to
be approximately $200,000 to $250,000. These amounts are not factually
supportable and therefore have been omitted.
(E) Represents the Company's share (33.375%) of loss of Principal for fiscal
year ended August 31, 1997 plus amortization of $101,000 related to the
excess of the carrying value of its investment over its proportionate share
of Principal No. 1's underlying equity. The carrying value of the
investment in common stock of Principal exceeds the Company's proportionate
share of Principal's equity by approximately $1,000,000. The Company will
amortize this amount over a period of 10 years. The Company's share of
annual net earnings which results from Principal's real estate acquisitions
after August 31, 1997 approximates $50,000, which amount has been omitted
from the equity loss set forth in the table.
(F) There are no corporate income taxes in the State of Michigan.
(G) Represents the activity of the Trust from inception of the lease. The 30
year triple-net lease provides for an option to purchase by the Tenant at
the end of 14 years. Initial rent payments of $3,000,000 commence on or
about July 1, 1999, with minimum increases of 2% commencing on the first
anniversary of payment. The purchase option is generally at fair market
value determined by a formula tied to a multiple of annual rent. Imputed
interest is recognized at 8%. Depreciation of buildings and equipment is
recognized over 40 to 50 year periods. The Trust's activities have been
consolidated with the Company as the Company presently has a 100% voting
interest in the Trust. The Trust is seeking other investors to reduce the
Company's interest in the Trust to 50% or less, at which time earnings from
the investment will be accounted for using the equity method.
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
OMEGA WORLDWIDE, INC.
July 2, 1998 By /s/ David A. Stover
---------------------------
David A. Stover,
Chief Financial Officer
<PAGE> 6
Exhibit Index
Exhibit 10.1 Form of transaction documents comprising agreements by and
among Principal Healthcare Finance Trust (f.k.a. Assisted
Living Unit Trust), Moran Health Care Group PTY Limited, ANB AMRO
Australia Limited, Premier Care Australia (Holdings) PTY Limited,
and FAI Insurances Limited and their affiliates as set forth in
the agreements described as follows: Mortgage of Deposit; Bill
Facility Agreement; Deed of Guarantee and Indemnity; Redemption
and Subscription Agreement; Relationship Agreement; Deed of
Mortgage; Annexure B to Mortgage; Capital Contribution Agreement;
NSW Lease; Lease Guarantee; Indemnity Deed; Procurement
Agreement; Mortgage of Shares and Mortgage of Units.
<PAGE> 1
EXHIBIT 10.1
PARTIES:
PREMIER CARE AUSTRALIA (HOLDINGS) PTY LIMITED
FAI INSURANCES LIMITED
PHF NO 1 PTY LIMITED
TANOA PTY LIMITED
PREMIER CARE AUSTRALIA PTY LIMITED
ASSISTED LIVING UNIT TRUST
REDEMPTION AND SUBSCRIPTION AGREEMENT
ABBOTT TOUT
Solicitors
Level 42, MLC Centre
19-29 Martin Place
SYDNEY 2000
DX: 129
TEL: (02) 9334 8555
FAX: (02) 9334 8585
REF: ENV
<PAGE> 2
REDEMPTION AND SUBSCRIPTION AGREEMENT dated: 1998
PARTIES: PREMIER CARE AUSTRALIA (HOLDINGS) PTY LIMITED ACN 070 667 417
of c/- Level 8, 333 Kent Street, Sydney (the "UNIT HOLDER")
FAI INSURANCES LIMITED ACN 004 304 545 of Level 8, 333 Kent
Street, Sydney ("FAI")
PHF NO.1 PTY LIMITED ACN 082 747 313 of Level 12, 255
Elizabeth Street, Sydney ("PHF")
TANOA PTY LIMITED ACN 001 396 989 of Level 12, 255 Elizabeth
Street, Sydney ("tANOA")
PREMIER CARE AUSTRALIA PTY LIMITED ACN 069 875 476 of
Level 8, 333 Kent Street, Sydney (the "TRUSTEE")
RECITALS:
A. The Trustee is the trustee of the Assisted Living Unit Trust.
B. The Unit Holder and FAI own all of the issued units in the Assisted
Living Unit Trust.
C. In consideration of the undertakings of PHF and Tanoa in this Agreement
the Unit Holder and FAI have requested the Trustee to redeem the units
referred to in recital B on the basis set out in this Agreement.
D. In consideration of the undertakings of the Unit Holder and FAI in this
Agreement PHF and Tanoa are willing to subscribe for units in the
Assisted Living Unit Trust on the basis set out in this Agreement.
E. In consideration of the payment of the sum of $1 to the Trustee by PHF
and Tanoa, the receipt of which is acknowledged, the Trustee has agreed
to redeem the units referred to in recital B and issue units to PHF and
Tanoa on the basis set out in this Agreement and to do the other things
required pursuant to this Agreement.
THE PARTIES AGREE:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement unless the context otherwise requires:
<PAGE> 3
"ACCOUNTS" means the management accounts of ALUT for the period of 9
months ended on the Accounts Date and contained in Schedule 1;
"ACCOUNTS DATE" means 31 March 1998;
"ALUT" means The Assisted Living Unit Trust established by the Trust
Deed;
"AUDITORS" means Arthur Andersen;
"AGREEMENT" means this agreement and any document that varies or
supplements it;
"ASSET SALE ADJUSTMENT" means half of the amount (if any) by which the
aggregate net sale proceeds (after deducting all direct selling
expenses including commissions and legal expenses) exceeds the
aggregate Valuation attributable to the sale during the period of 12
months from the Completion Date of any Valued Assets by the Trustee;
"BANK" means any of the four largest Australian banks as defined in
section 5 of the Banking Act 1959 (Cth), ABN AMRO Australia Limited and
State Bank of New South Wales Limited;
"BILL" means a bill of exchange as defined in the Bills of Exchange Act
1909 (Cth);
"BUSINESS DAY" means a day other than a Saturday, Sunday or public
holiday in New South Wales;
"COMPLETION" means the redemption of the Premier Units and the issue of
the Subscription Units pursuant to this Agreement;
"COMPLETION BALANCE SHEET" means the balance sheet prepared in
accordance with subclause 7.1;
"COMPLETION DATE" means the date of this Agreement;
"CONSENT" has the same meaning as is attributed to that term in the
Trust Deed.
"DISCLOSURE LETTER" means the letter delivered by the Unit Holder to
the Subscribers immediately prior to the execution of this Agreement
which is expressed to have been prepared for the purpose of making some
disclosure
<PAGE> 4
3
concerning, and qualifying, the Warranties.
"FIRST PACIFIC DAVIES VALUATION REPORT" means the valuation report on
the retirement village and nursing home portfolio of ALUT prepared by
First Pacific Davies and dated 30 June 1997;
"INTERIM PAYMENT" means $50,000,000;
"LEASES" means the residential leases entered into by the various
residents of the Properties;
"MANAGEMENT AGREEMENTS" means those contracts between the Trustee or
its predecessor and the occupiers of the assisted living units which
form part of the Properties which regulate the provision of services to
those occupiers and the other rights and obligations of the Trustee and
the respective occupiers, and the securities granted in respect of any
of those contracts;
"MORANS" means Moran Health Care (Australia) Pty Limited, ACN 082 466
457;
"PREMIER UNITS" means 36,500,005 units in ALUT issued to and registered
in the name of the Unit Holder and 5 units in ALUT issued to and
registered in the name of FAI;
"PROCUREMENT AGREEMENT" means the agreement of that name dated the same
date as this Agreement between Morans, FAI, Moran Health Care Group Pty
Limited, Douglas John Moran, Greta Richmond Moran, Peter Godfrey Moran
and Shane Moran.
"PROPERTIES" means the respective nursing homes and retirement villages
referred to in the Valuation;
"REDEMPTION AMOUNT" has the same meaning as is attributed to that term
in the Trust Deed.
"SALE SHARES" means all of the issued shares in the Trustee;
"SUBSCRIBERS" means PHF and Tanoa;
"SUBSCRIPTION UNITS" means 2,500,000 units in ALUT to be subscribed for
by PHF and 2,500,000 units in ALUT to be subscribed for by Tanoa in
accordance with clause 4.1;
<PAGE> 5
4
"TAX" means all income and other taxes, levies, duties, imposts or
withholdings imposed by statute including income tax, group tax,
prescribed payments, reportable payments, withholding tax, sales tax,
stamp duty, land tax, payroll tax, bank accounts debits tax, work
cover, municipal rates and taxes, fringe benefits tax or other similar
taxes and any interest, penalty, surcharge or fine related to the
relevant tax;
"TRUST DEED" means the deed dated 11 August 1995 between Assisted
Living Holdings Pty Limited as trustee and Metlife Australia (Holdings)
Pty Limited and FAI Deposit Co Pty Limited as original unit holders;
"VALUATION" in relation to any of the Valued Assets means the value
attributed to that asset in the First Pacific Davies Valuation Report;
<PAGE> 6
5
"VALUED ASSETS" means the assets, in the form existing as at 30 June
1997, the subject of the First Pacific Davies Valuation Report;
"WARRANTIES" means the warranties and representations by the Unit
Holder in Schedule 2.
1.2 References to recitals, clauses, subclauses, paragraphs, annexures or
schedules are references to recitals, clauses, subclauses, paragraphs, annexures
and schedules of or to this Agreement.
1.3 Headings in this Agreement are for convenience only and do not affect
its interpretation or construction.
1.4 In this Agreement unless the context otherwise requires:
(1) the singular includes the plural and vice versa;
(2) each gender includes the other two genders;
(3) the word "person" means a natural person and any association,
body or entity whether incorporated or not;
(4) the word "month" means calendar month and the word "year"
means 12 calendar months;
(5) a reference to writing includes any communication sent by
post or facsimile transmission;
(6) where any word or phrase is defined, any other part of speech
or other grammatical form of that word or phrase has a cognate
meaning;
(7) a reference to any statute, proclamation, rule, code,
regulation or ordinance includes any amendment, consolidation,
modification, re-enactment or reprint of it or any statute,
proclamation, rule, code, regulation or ordinance replacing
it;
(8) mentioning anything after "include", "includes" or "including"
does not limit what else might be included;
(1) no rule of construction applies to the disadvantage of a party
because this Agreement is prepared by (or on behalf of) that
party;
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6
(10) a reference to any thing is a reference to the whole and each
part of it;
(11) all monetary amounts referred to in, and payments required
pursuant to, this Agreement are in Australian currency;
(l) a reference to time refers to time in Sydney, Australia; and
(13) an agreement warranty representation or obligation which binds
or benefits 2 or more persons under this Agreement binds or
benefits those persons jointly and separately.
2. REDEMPTION OF PREMIER UNITS
2.1 This Agreement is a request by the Unit Holder and FAI to redeem the
Premier Units for the purpose of clause 3.10(a) of the Trust Deed.
2.2 This Agreement constitutes Consent to the extent its subject matter
requires Consent.
3. REDEMPTION AMOUNT AND ASSET SALE ADJUSTMENT
3.1 The Redemption Amount in respect of the redemption of the Premier Units
is (subject to adjustment in accordance with clause 7) $50,000,000.
3.2 The Trustee must not alienate or dispose of any Valued Asset during the
12 month period from the Completion Date otherwise than by way of sale
on an arm's length basis. This does not preclude the Trustee leasing
any Valued Asset to Moran Health Care (Australia) Pty Limited or
engaging Moran Health Care (Australia) Pty Limited to manage any Valued
Asset on its behalf.
3.3 The Interim Payment must be paid by the Trustee on Completion on
account of the Redemption Amount by delivery to the Unit Holder of
unindorsed Bank accepted Bills, with an aggregate face value equal to
the Interim Payment, drawn in favour of the Unit Holder or its nominee
or nominees (as notified by the Unit Holder to the Trustee prior to the
execution of this Agreement) and payable in Sydney on the Business Day
(date fixed) immediately preceding the first anniversary of the
Completion Date.
3.4 The Trustee must pay the Unit Holder an amount equal to the Asset Sale
Adjustment.
3.5 The Asset Sale Adjustment must be paid within 5 Business Days of the
first
<PAGE> 8
7
anniversary of the Completion Date by unindorsed Bank cheque in
favour of the Unit Holder. This cheque must be accompanied by a
detailed written statement reflecting the sales, sale prices and all
direct selling expenses including commissions and legal expenses on
each sale with reasonable particularity so as to enable the Unit Holder
to reconcile the amount of the payment. The Unit Holder will have the
right (exercisable by written notice to be given within 28 Business
Days of receipt of the reconciliation) to audit the books and records
of ALUT to verify the computation of the amount due. The Trustee agrees
to co-operate with the Unit Holder and its professional advisers in
relation to this verification process. The Unit Holder must comply with
any reasonable restriction imposed by the Trustee in respect of the
right to audit the books and records of ALUT to ensure that information
relating to any activity of ALUT unrelated to the calculation of the
Asset Sale Adjustment is kept confidential to the Trustee. Any dispute
between the parties in relation to the computation of the amount due to
the Unit Holder must be resolved in accordance with the provisions of
clause 10.
4. SUBSCRIPTION FOR UNITS
4.1 The Subscribers will each subscribe for 2,500,000 (being a total of
5,000,000) units of $1.00 each in ALUT on Completion and the Trustee
agrees to issue those units immediately upon the payment to it of the
subscription money.
4.2 The Unit Holder agrees to procure the transfer of the Sale Shares to
Omega Worldwide, Inc. (who for the purpose of this Agreement is the
Subscribers' nominee) for $1.
4.3 The subscription and issue of Subscription Units to the Subscribers and
the transfer of the Sale Shares will be subject to the provisions of
this Agreement.
5. COMPLETION
5.1 Completion will take place on the Completion Date at 11.00 a.m. (or at
such later time as may be agreed to by the Unit Holder and the Subscribers) at
the offices of the Unit Holder's solicitors, Abbott Tout, Level 42, MLC Centre,
19-29 Martin Place, Sydney. The date and time specified for Completion must be
strictly complied with. If any party is unable or unwilling to Complete when
specified in circumstances where at least one other party is ready, willing and
able to Complete, that will entitle the party or parties ready, willing and
able to Complete to cancel or to recover damages (or both).
5.2 On Completion the Unit Holder must:
<PAGE> 9
8
(a) Surrender to the Trustee for cancellation the certificates for
the Premier Units.
(2) Deliver to PHF the share certificates for the Sale Shares and
duly executed transfers of the Sale Shares in registrable form
in favour of Omega Worldwide, Inc.
(c) Procure that a meeting of the directors of the Trustee is held
at which those directors will (except to the extent to which
PHF may by written notice waive compliance with the provisions
of this paragraph (c)):
(i) resign, by written notification to the Trustee
effective from Completion a copy of which must be
provided to PHF from their office as directors of the
Trustee in such manner and at such time as will
enable the persons nominated in writing by PHF to be
appointed directors and the secretary of the Trustee
effective from Completion (such nominations to be
made not less than two Business Days prior to the
Completion Date), and so appoint the Subscribers'
nominees as directors;
(ii) revoke the authorities in respect of the operation of
the bank accounts for ALUT and grant new authorities
effective from Completion to such persons as PHF
shall nominate (any such nomination to be made not
less than two Business Days prior to the Completion
Date);
(iii) revoke effective from Completion all current powers
of attorney granted by the Trustee, notify the
attorneys in writing of such revocation and provide a
copy of each such notice of revocation to PHF;
(iv) issue the Subscription Units to PHF and Tanoa; and
(v) approve the transfer of the issued shares in the
Trustee and (subject to payment of stamp duty) the
registration of such transfer and the issue of new
share certificates to Omega Worldwide, Inc.
(d) Procure the delivery to the Trustee (with a copy to PHF) of
the written resignation of the company secretary of the
Trustee effective from Completion.
(5) Cause to be delivered to PHF the current certificate of
incorporation, seals, registers, minute books and memorandum
and articles
<PAGE> 10
9
of association of the Trustee, the Trust Deed and
all other books of account, records (including those stored
electronically) and documents of the Trustee and ALUT.
5.3 On Completion the Unit Holder must cause to be discharged all
obligations of the Trustee (in its own capacity and in its capacity as
trustee of ALUT) to HongKongBank of Australia Limited and to Sovereign
Limited and all encumbrances registered over the assets of the Trustee
and ALUT in favour of HongKongBank of Australia Limited and Sovereign
Limited, any other liability of the Trustee to FAI or any of its
subsidiaries (other than for insurance or superannuation premiums or
fees for insurance, superannuation or similar services) and any
liability that is subject to any other encumbrance registered over the
assets of the Trustee or ALUT other than to ABN AMRO Australia Limited
or ABN AMRO Facilities Australia Limited assumed by the Trustee on the
Completion Date.
5.4 On Completion the Trustee must comply with subclause 3.3.
5.5 Completion will not be regarded as having occurred for the purposes of
this Agreement until all of the acts required pursuant to the preceding
subclauses of this clause 5 and clause 2.2.3 of the Procurement
Agreement have occurred. Until the last act so required has occurred,
all money paid and all documents delivered pursuant to those subclauses
will be held by or on behalf of the recipient as bailee for the party
so paying or delivering, and title will not pass and no such document
will be effective until the last act so required has occurred.
<PAGE> 11
10
6. CHANGE OF NAME
6.1 The Subscribers acknowledge that immediately prior to Completion the
Unit Holder will procure that the shareholder of the Trustee will
resolve to change the name of the Trustee to Principal Healthcare
Finance (Australia) Pty Limited, with effect from Completion. By the
close of business on the Business Day following Completion the
Subscribers must cause the Trustee to lodge with the Australian
Securities Commission the forms required to effect this change of name.
Each of the Subscribers and the Trustee agree that they will not, and
will procure that each person or body corporate who is an associate of
them will not, use, directly or indirectly, and will ensure that any
successor trustee of ALUT does not use, the name "Premier" or any word
visually or orally similar to that word in connection with their
activities (or the activities of ALUT) in Australia or New Zealand (or
both). The Unit Holder agrees that the use of the word "Principal" will
not breach the requirements of this clause.
6.2 In this clause 6 a reference to an associate, where used to indicate a
relationship with any relevant person or body corporate, has the same
meaning as is given to that term in clause 6.2 of the Procurement
Agreement.
7. POST-COMPLETION ADJUSTMENTS
7.1 The Trustee must cause the Auditors to prepare:
(1) a balance sheet for ALUT in accordance with generally accepted
accounting principles and practices in Australia applicable as
at Completion (adopting consistent treatment and policies as
were employed in preparing the Accounts) and which presents a
true and fair view of the consolidated financial position and
state of affairs of ALUT as at Completion (following
compliance with subclause 5.3 and ignoring any amounts which
result from the Trustee complying with subclause 3.3, the
subscription for the Subscription Units, or the redemption of
the Premier Units and any obligation to ABN AMRO Australia
Limited or ABN AMRO Facilities Australia Limited assumed by
the Trustee on the Completion Date); and
(2) a written determination (the "Determination") (reflecting the
calculation of the amount with reasonable particularity) of
the net sale proceeds (after deducting all direct selling
expenses including commissions and legal expenses) of sales by
the Trustee of any of the Valued Assets excluding deferred
management fees payable under the Management Agreements during
the period from 1 July 1997 to Completion.
<PAGE> 12
11
(3) The Trustee agrees to instruct the Auditors to take into
consideration any reasonable suggestions made by either the
Trustee or FAI regarding provisions for Tax in the Completion
Balance Sheet.
<PAGE> 13
12
7.2 The Completion Balance Sheet and the Determination are to be prepared
in conjunction with the audit of ALUT as at 30 June 1998.
7.3 The Trustee must cause the Auditors to prepare a certificate (the
"Certificate") setting out with reasonable particularity the
calculation of an amount (the "Adjusted Interim Payment") determined in
accordance with the following formula:
Adjusted Interim Payment = A + B + C + D + E - F
Where: A is $50,000,000;
B is the value in the Completion Balance Sheet of the assets
of ALUT, other than:
- the Valued Assets and any additions or improvements
to the Valued Assets since 30 June 1997;
- the assets contemplated by C and D of the above
formula; and
- assets of the kind which are identified in the
Accounts as "Acquisition Cost", "Development Costs",
"Development Costs - C'Wood", "Formation Expenses -
Cost" and "Head Office Costs";
C is the cash on hand and at bank of ALUT in the Completion
Balance Sheet;
D is the debtors (other than debtors in respect of deferred
management fees whether or not then due and payable under the
Management Agreements) of ALUT in the Completion Balance
Sheet;
E is $275,000; and
F is the liabilities and provisions of ALUT in the Completion
Balance Sheet (after compliance with subclause 5.3).
It is agreed that the following provisions will not be included in F:
(1) demolition, rebuilding, alteration, repairs
and maintenance, upgrading or refurbishment
of the Valued Assets;
<PAGE> 14
13
(2) work required to be done to meet present
certification and contemplated accreditation
standards pursuant to the Aged Care Act,
1997 or any similar requirements;
(3) anything required to be done to rectify the
Millennium Bug phenomenon contemplated in
paragraph (g)(iii) of subclause 9.11;
(4) depreciation of depreciable Valued Assets;
(5) bad or doubtful debts; or
(6) compliance with the Building Code of
Australia or any legislative requirements
(of any Commonwealth, State or local
government or governmental authority or
instrumentality) or mandatory or voluntary
codes.
It is further agreed that:
(7) the reference to "any legislative
requirements" in (f) above does not include
a reference to any legislative requirements
relating to Taxes, employee entitlements,
long service leave, water rates and water
usage charges, motor vehicle registration,
compulsory third party insurance, insurance
relating to the employment of workers,
licence fees payable pursuant to the Nursing
Homes Act 1988 and, to the extent that they
are not to be adjusted between the parties
pursuant to clause 7.7, benefits payable or
repayable pursuant to the National Health
Act 1953 and subsidies payable or repayable
pursuant to the Aged Care Act 1997; and
(8) the term "provisions" for the purposes of
paragraphs (a) - (f) does not include
creditors or accruals.
7.4 If the Adjusted Interim Payment is greater than the Interim Payment
then the Trustee must pay to the Unit Holder an amount equal to the
difference. If the Adjusted Interim Payment is less than the Interim
Payment then the Unit Holder must pay to the Trustee an amount equal to
the difference.
<PAGE> 15
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7.5 Copies of the Completion Balance Sheet, the Certificate and the
Determination must be delivered by the Trustee to the Unit Holder
within 5 Business Days of their delivery by the Auditors to the Trustee
together with a statement of the aggregate amount of the Auditors'
costs and disbursements incurred in preparing the Completion Balance
Sheet, the Certificate and the Determination which are additional to
the Auditors' costs and disbursements of auditing the accounts of ALUT
for the year ending 30 June 1998. The Unit Holder and the Trustee will
each be responsible for paying 50% of those additional costs.
7.6 All payments required to be made pursuant to subclause 7.4 must be made
within 25 Business Days of receipt of the documents required to be delivered
pursuant to subclause 7.5 by unindorsed Bank cheque and, if any amount is
disputed, the amount due must be paid within 5 Business Days of the resolution
of the dispute.
7.7 To the extent to which there is any amount payable to or by the
Commonwealth Government arising out of the annual NH20 validation process
commencing in May 1998 relating to the nursing homes comprising part of the
Valued Assets, or in relation to other benefits paid by the Commonwealth
Government in respect of the Valued Assets in respect of any period prior to
Completion which is not brought to account in the Completion Balance Sheet then:
(1) if a payment is due to the Commonwealth Government by the
Trustee or Morans, the Unit Holder must pay an amount
equivalent to the amount not so brought to account:
(i) to the Trustee or as the Trustee directs by the due
date for payment; or
(ii) to the Trustee if the liability to the Commonwealth
Government is satisfied by way of a reduction of a
payment made by the Commonwealth Government to the
Trustee or Morans after Completion within 5 Business
Days of the Unit Holder being notified of such
reduction; or
(2) if a payment is due by the Commonwealth Government to the
Trustee or Morans, the Trustee must pay an amount equivalent
to the amount not so brought to account to the Unit Holder, or
procure that such amount is paid to the Unit Holder, within 5
Business Days of the Trustee or Morans receiving payment (or
credit) from the Commonwealth Government.
<PAGE> 16
15
The Trustee agrees to provide a copy of the final reconciliation
statement arising out of the NH20 validation to the Unit Holder within
5 Business Days of the issue of that reconciliation.
7.8 All payments required to be made pursuant to subclause 7.7 must be
made by unindorsed Bank cheque.
7.9 Any amount paid to the Trustee by the Unit Holder pursuant to this
clause will be in reduction and refund of the Redemption Amount for the
Premier Units and any amount paid to the Unit Holder pursuant to this
clause will be an increase and in payment of the Redemption Amount for
the Premier Units.
8. DEBTORS
8.1 If any of the debtors (other than debtors in respect of deferred
management fees, whether or not due and payable, under the Management
Agreements) taken account of in the Completion Balance Sheet have not
met their obligations to ALUT in full within six months of the
Completion Date then, in respect of each outstanding debt, the Trustee
must assign (in any way reasonably required by, and at the reasonable
cost of, the Unit Holder) the debt to the Unit Holder against payment
by the Unit Holder to the Trustee of an amount equal to the amount of
the debt assigned.
8.2 In respect of each debt so assigned, the Trustee must provide such
assistance and access to books and records as the Unit Holder may
reasonably require to assist with the recovery of the relevant debt by
the Unit Holder, and to do all things reasonably required by the Unit
Holder (at the reasonable cost of the Unit Holder) to perfect, further
assure or evidence the assignment.
9. WARRANTIES AND REPRESENTATIONS
9.1 The Unit Holder acknowledges that the Subscribers enter into this
Agreement at its request and as a result the Unit Holder will receive
valuable consideration by way of the redemption of the Premier Units
which will be facilitated by the Subscribers and in consideration of
the subscription of the Subscription Units to be made by the
Subscribers and the facilitation referred to the Unit Holder warrants
and represents to the Subscribers in terms of the Warranties as
qualified by the succeeding subclauses of this clause 9. The Unit
Holder also warrants and represents to the Subscribers that the
contents of the Disclosure Letter are, to the best of the information,
knowledge and belief of the Unit Holder, correct.
<PAGE> 17
16
9.2 Each of the Warranties will be treated as a separate representation and
warranty in respect of each statement contained in Schedule 2 and the
interpretation of any such statement contained in Schedule 2 will not
be restricted by reference to or inference from any other such
statement contained in Schedule 2.
9.3 The Unit Holder represents and warrants that each of the Warranties are
true and correct as at Completion.
9.4 Each of the Warranties will survive Completion and will not be
extinguished by any investigation made by or on behalf of the
Subscribers into the affairs of ALUT nor merge on Completion or the
redemption of the Premier Units, the issue of the Subscription Units to
the Subscribers or by any other event or matter whatever except a
specific and duly authorised written waiver or release by the
Subscribers, and will continue for the benefit of the Subscribers
despite such Completion and transfer.
9.5 Any claim by the Subscribers for breach of a Warranty, other than the
Warranty numbered 15 in Schedule 2:
(1) must be made within 18 months of the Completion Date in
writing providing reasonable particulars of the claim to the
Unit Holder; and
(b) must be for a minimum amount of at least $50,000.
Any such claim will (if not previously settled, satisfied or withdrawn)
be taken to be waived or withdrawn and will be barred and unenforceable
on the first anniversary of the date the claim is made unless
proceedings in respect of the claim have been commenced against the
Unit Holder (by issue and service) before the relevant anniversary.
9.6 Any claim by the Subscribers for breach of the Warranty numbered 15 in
Schedule 2:
(1) must be made within six years of the Completion Date in
writing providing reasonable particulars of the claim to the
Unit Holder; and
(b) must be for a minimum amount of at least $50,000.
Any such claim will (if not previously settled, satisfied or withdrawn)
be taken to be waived or withdrawn and will be barred and unenforceable
on the first
<PAGE> 18
17
anniversary of the date the claim is made unless proceedings in respect
of the claim have been commenced against the Unit Holder (by issue and
service) before the relevant anniversary.
9.7 The Unit Holder will not have any liability in respect of any claim
contemplated by subclause 9.5 which is substantiated unless the amount
of the claim when aggregated with the amount of any other claims
contemplated by subclause 9.5 which are substantiated made against the
Unit Holder exceeds $300,000 and then only as to the extent of the
excess over that sum.
9.8 The maximum aggregate liability of the Unit Holder for any breach of
the Warranties, other than the Warranty numbered 15 in Schedule 2, will
be limited to $5,000,000.
9.9 The Unit Holder will not have any liability in respect of any claim
contemplated by subclause 9.6 which is substantiated unless the amount
of the claim when aggregated with the amount of any other claims
contemplated by subclause 9.6 which are substantiated made against the
Unit Holder exceeds $300,000 and then only as to the extent of the
excess over that sum.
9.10 The maximum aggregate liability of the Unit Holder for any breach of
the Warranty numbered 15 in Schedule 2 will be limited to $10,000,000.
9.11 The Subscribers acknowledge that:
(1) At no time:
(i) has the Unit Holder, or any person on the Unit
Holder's behalf, made or given; or
(1) have the Subscribers relied on any representation,
warranty, promise or forecast except the Warranties.
(2) The Unit Holder has made no representations or warranties
regarding the future profitability of ALUT.
(3) The Unit Holder has made no representations or warranties
regarding the advantages, benefits, opportunities or
possibilities of acquiring ALUT rather than its assets.
(d) No statements or representations other than the Warranties:
<PAGE> 19
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(1) have induced or influenced the Subscribers to enter
into this Agreement or agree to its terms;
(iii) have been relied on in any way as being accurate by
the Subscribers;
(iv) have been warranted to the Subscribers as being true;
or
(5) have been taken into account by the Subscribers as
being important to the Subscribers' decision to enter
into this Agreement or agree to its terms.
(5) The Warranties do not extend to any facts or circumstances
which occurred before or which relate to any period ending on
or before 28 September 1995, irrespective of whether the Unit
Holder is or ought to have been aware of those facts or
circumstances.
(6) The Unit Holder has made no representations or warranties
regarding any entitlement by ALUT to new and rebuilt
additional recurrent funding from the Australian Commonwealth
Department of Health and Family Services.
(7) No warranties or representations are given with respect to:
(i) the First Pacific Davies Valuation Report;
(ii) the current condition and state of repair of any
assets of ALUT or to the effect that they do not have
any latent or patent defects or to the effect that
they comply with any applicable legislation,
regulations, zoning, town planning or any other
mandatory or voluntary requirements;
(iii) the fact that ALUT may not have in place whatever is
or will be necessary to ensure that the phenomenon
known as the Millennium Bug will not affect in any
way the functioning of the assets of ALUT and
particularly, without limitation, its services. In
this paragraph "Millennium Bug" includes but is not
limited to:
- any adverse effect with respect to dates up
to into and during the year 2000;
- any inability to deal properly with leap
years;
<PAGE> 20
19
- any inability to deal properly with all
calculations based on dates, times,
sequences, comparisons and the like; and
- any inability to deal properly with any
function that is programmed to commence or
end on a particular date.
(iv) the validity of the issue, transfer and any renewals
of the nursing home licences held by ALUT, or the
benefits (including bed licences) which attach to
those licences ;
(v) the soundness and safety of the structure of any
nursing homes owned by ALUT, or the direct or
indirect consequences for ALUT of unsoundness or lack
of safety of those nursing homes;
(vi) the development potential of any vacant land or any
other land owned by ALUT;
(vii) the Accounts or any other accounts or financial
statements or management accounts of the Trustee or
ALUT;
(viii) the worth of any asset including the Valued Assets;
and
(ix) the recoverability of any rollover components
contemplated by the First Pacific Davies Valuation
Report.
(h) the Unit Holder has given notice pursuant to section 65A of
the National Health Act 1953 and made application pursuant to
Division 16 of the Aged Care Act 1997 in respect of the
nursing homes and in both cases named Moran Health Care
(Australia) Pty Limited as the counter party.
9.12 The Subscribers and the Trustee agree that any monetary compensation
payable as a result of any breach by the Unit Holder of any Warranty
will be payable to the Trustee in reduction and refund of the
Redemption Amount for the Premier Units and the Subscribers direct the
Unit Holder to make all such payments to the Trustee and release the
Unit Holder from any obligation to make such payments to the
Subscribers.
9.13 To the extent permitted by law, the Subscribers agree not to make and
waive any right they may have to make any claim against the Unit Holder
and any of its officers, employees, agents and advisers under s52 of
the Trade Practices Act 1974 (Cth) and the corresponding provisions of
the Fair Trading Act 1987 (NSW).
<PAGE> 21
20
9.14 If, after the Unit Holder has made a payment to the Trustee under a
claim for breach of Warranty, the Subscribers or ALUT receives any
benefit or credit by reason of the matters to which the claim relates,
then the Subscribers or the Trustee must immediately pay the Unit
Holder a sum corresponding to the amount of the payment or (if less)
the amount of the benefit or credit.
9.15 The Unit Holder will not be liable to the Subscribers for any claim for
breach of, or inaccuracy in, any Warranty to the extent that the
Subscribers or the Trustee are entitled to claim an indemnity against
any loss or damage suffered by the Subscribers or the Trustee out of
the breach or claim under the terms of any insurance policy of or
applicable to the Subscribers or the Trustee (in its capacity of
trustee of ALUT).
9.16 The limitations in subclauses 9.5 to 9.10 inclusive do not apply to the
extent that there is a breach of Warranty which is attributable to any
fraud, dishonesty or intentional concealment by or on behalf (and with
the knowledge) of the Unit Holder or the Trustee.
9.17 The Subscribers have had the benefit of advice from a sophisticated
investor in the aged care and health care business independent of the
Unit Holder in connection with this Agreement and their valuation of,
offer to subscribe for the Subscription Units and decision to enter
into this Agreement is based on their own independent evaluation of
those facts and materials which the Subscribers and their advisers
considered relevant. As well, the Subscribers have engaged the services
of accountants, consultants, solicitors and other professional advisers
to assist the Subscribers in due diligence investigations into the
business and affairs of ALUT. The Subscribers have also relied on the
investigations made by Moran Health Care Group Pty Limited and its
professional advisers to support and supplement the Subscribers' due
diligence investigations. The Subscribers acknowledge and agree that
these things have enabled them to identify and evaluate, and satisfy
themselves that they fully appreciate and understand, the issues and
risks associated with this transaction including in particular the
limitations which will apply to the Subscribers by virtue of paragraphs
(a), (b), (c) and (d) of this subclause. Accordingly:
(1) Other than the representations and Warranties on the part of
the Unit Holder set out in this Agreement, the Subscribers
acknowledge and agree that they have not relied, in entering
into this Agreement, on any oral or written information from
the Unit Holder, FAI or any of their subsidiaries or from any
of their respective employees, agents, independent contractors
and advisers (including appraisals, projections or
evaluations) not referred to in the Disclosure Letter. The
Subscribers also acknowledge and agree
<PAGE> 22
21
that no employee, agent, independent contractor or adviser of
the Unit Holder or FAI or any of their subsidiaries has been
authorised to make, and that the Subscribers have not relied
upon, any statements or representations other than those
specifically set out in this Agreement or in the Disclosure
Letter.
(2) The Subscribers acknowledge and agree that the Subscribers are
subscribing for the Subscription Units and acquiring the Sale
Shares and (indirectly through the subscription for the
Subscription Units) the Valued Assets and other assets of ALUT
on Completion in their current condition and state of repair
and, except as expressly set out in this Agreement, the Unit
Holder and FAI are not making any representation or warranty,
express or implied, and the Subscribers have not relied on any
representation or warranty, express or implied, regarding the
Subscription Units, the Sale Shares, the Valued Assets and
other assets of ALUT as at Completion including any
representation or warranty with respect to:
(i) the business or financial condition of ALUT or the
Trustee;
(ii) the physical condition of any of the Valued Assets or
any other asset of ALUT as at Completion, or their
fitness or suitability for any use or purpose;
(iii) (except to the extent of the Warranty numbered 16 in
Schedule 2), the compliance or non-compliance with
any laws, codes, ordinances, rules or regulations of
any government, governmental authority or
instrumentality and any violations of those things;
or
(iv) the current or future use of the Valued Assets or any
other assets of ALUT as at Completion including their
use for commercial, retail, industrial or other
purposes.
(3) The Subscribers acknowledge and agree that the Unit Holder and
FAI are not liable or responsible for or bound in any manner
by any oral or written statements, representations,
information memoranda or other information pertaining to ALUT
or the Trustee provided by any real estate agent, business
broker, merchant banker, adviser, consultant, agent, employee
or representative of any other person not referred to in the
Disclosure Letter.
(4) The Subscribers acknowledge and agree that they will have no
claim or right of action against the Unit Holder or FAI, if
any of the Valued Assets
<PAGE> 23
22
or any other assets of ALUT as at Completion are subject to
any breach of statute, ordinance or requirement of any
government or governmental authority or instrumentality, to
require the Unit Holder or FAI to remove, comply with, cure,
discharge or otherwise deal with any such breach, notice,
order, or requirement, or the conditions giving rise to any of
those things.
9.18 Where any statement in this Agreement or in Schedule 2 is qualified by
the expression "to the best of the information, knowledge and belief of
the Unit Holder" the Subscribers acknowledge that in relation to the
preparation of this Agreement and the provision of information to the
Subscribers, and in relation to the giving of the statement the Unit
Holder has only made enquiries of the chief executive officer of the
Trustee and the Subscribers agree that the qualification by that
expression is not to be construed as requiring any other enquiry or
investigation by the Unit Holder.
9.19 The Subscribers and the Trustee acknowledge and agree that FAI has not
made any warranties or undertakings to the Subscribers or the Trustee
or anyone on their behalf. FAI's liability under this Agreement
following Completion is limited to its liability under clause 12.
9.20 The Warranties numbered 26 and 27 in Schedule 2 must be construed as
not giving rise to any liability on the part of the Unit Holder in
respect of any matter which by virtue of subclauses 9.11 and 9.17 the
Unit Holder does not have any liability to the Subscribers.
9.21 In this Agreement each Warranty is qualified by the disclosures made in
the Disclosure Letter and any reference to Warranties must be read
accordingly.
10. EXPERT RESOLUTION
10.1 The parties agree that any dispute between them in relation to the
amounts payable pursuant to subclause 3.4 or clause 7 (or both) will be
resolved by a chartered accountant of not less than ten years' standing
appointed by agreement between them or, failing agreement, by the
President for the time being of The Institute of Chartered Accountants
in Australia in accordance with the succeeding subclauses of this
clause.
10.2 The person appointed pursuant to subclause 10.1 will act as an expert
not an arbitrator and that person's decision will be final and binding
on the parties.
<PAGE> 24
23
10.3 The costs of resolution of the dispute in accordance with this clause
10 will be borne in accordance with the directions of the person
resolving the dispute.
11. CLAIM AGAINST ASSISTED LIVING AUSTRALIA GROUP
11.1 The Subscribers acknowledge that ALUT has a potential claim against
Assisted Living Australia (Villages) Limited (or its receiver,
liquidator or administrator) as outlined in Schedule 3.
11.2 The Trustee must take such steps including the institution of legal
proceedings (but only if the Unit Holder requires the institution of
proceedings within six months of the Completion Date) in pursuance of
such claim and the settlement or compromise of that claim as the Unit
Holder may reasonably require.
11.3 The Unit Holder agrees to indemnify ALUT for all costs and expenses
incurred by ALUT in accordance with subclause 11.2 (including any legal
costs and expenses which may be awarded against ALUT as a consequence
of ALUT complying with subclause 11.2), and to provide to the Trustee
such security for those costs and expenses as the Trustee may
reasonably require.
11.4 The Trustee agrees to pay to the Unit Holder, as an additional
component of the Redemption Amount for the redemption of the Premier
Units, an amount equivalent to the aggregate proceeds of pursuit and
recovery of that claim (including from any settlement or compromise),
net of any Tax attributable to that amount, as and when those proceeds
are received by ALUT.
12. GUARANTEE FROM FAI
12.1 FAI is the ultimate holding company of the Unit Holder and FAI
acknowledges that the Subscribers are entering into this Agreement in
consideration of FAI agreeing to guarantee the obligations of the Unit
Holder in accordance with the succeeding subclauses of this clause.
12.2 FAI unconditionally and irrevocably guarantees the due and punctual
performance of all of the Unit Holder's obligations under this
Agreement. FAI will immediately on demand perform any obligation owed
by the Unit Holder to the Subscribers and not performed by the Unit
Holder when required or provided for under this Agreement.
12.3 FAI's obligation under the guarantee in subclause 12.2:
<PAGE> 25
24
(1) is a principal obligation and is not ancillary or collateral
to any other obligation; and
(b) may be enforced against FAI without the Subscribers being
required to exhaust any remedy they may have against the Unit
Holder.
12.4 The liability of FAI pursuant to the guarantee in subclause 12.2 will
not be affected by any act, omission, matter or thing which, but for
this provision might operate to release or otherwise exonerate it from
any of its obligations including any one or more of the following
(whether occurring with or without the consent of any person):
(a) the Subscribers granting time or other indulgence to the Unit
Holder or FAI;
(b) laches, acquiescence, delay, act or omission by the
Subscribers;
(c) the insolvency or deregistration of the Unit Holder; or
(4) anything else which might have a similar effect at law or in
equity to any of those things.
13. GENERAL
13.1 The validity, interpretation and performance of this Agreement will be
governed by the law of the State of New South Wales and of the
Commonwealth of Australia. The parties submit to the non-exclusive
jurisdiction of the Courts of the State of New South Wales and of the
Commonwealth of Australia in respect of any dispute that arises in
connection with this Agreement.
13.2 No failure, delay, relaxation or indulgence by a party in exercising
any power or right conferred upon it under this Agreement will operate
as a waiver of that power or right. No single or partial exercise of
any power or right precludes any other or future exercise of it, or the
exercise of any other power or right under this Agreement.
13.3 If any provision of this Agreement is invalid, void or unenforceable,
all other provisions which are capable of separate enforcement without
regard to an invalid, void or unenforceable provision are and will
continue to be of full force and effect in accordance with their terms.
<PAGE> 26
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13.4 This Agreement may not be varied except by written instrument executed
by the parties.
13.5 The rights of each party under this Agreement may not be assigned
without the prior written consent of the other parties.
13.6 Each party must promptly execute all documents and do all things that
another party from time to time reasonably requests to effect, perfect
or complete this Agreement and all transactions incidental to it.
13.7 A notice or other communication required or permitted to be given by a
party to another must be in writing and:
(a) delivered personally;
(b) sent by post, postage prepaid; or
(c) sent by facsimile transmission
to that party's address that is set out in this Agreement or notified
in writing to each party from time to time.
For the purposes of this subclause 13.7, the facsimile numbers to which
facsimile transmissions are to be sent are:
Unit Holder
and FAI: (612) 9274 9900 Att: The Company Secretary
Subscribers and
the Trustee:Omega Worldwide, Inc (1734) 996 0020 Att: Essel W
Bailey and to Omega (UK) Limited (44 171) 929 3555 Att:
James P Flaherty and to Phillips Fox (612) 9283 4144 Att:
Robert Tobias
13.8 A notice or other communication will be taken, for the purposes of this
Agreement, to have been given if:
(a) personally delivered, upon delivery;
(b) mailed, on the expiration of 2 Business Days after posting; or
(3) sent by facsimile transmission, on the day it is sent (or, if
that is not a Business Day, on the next Business Day).
<PAGE> 27
26
14. STAMP DUTY AND OTHER IMPOSTS
14.1 The Subscribers agree to pay or cause to be paid all stamp duty, fines
and penalties (including any liability with respect to or resulting
from delay or omission to pay such duty), which may be payable or
determined to be payable in connection with the execution, delivery,
performance or enforcement of this Agreement or any other instrument
created pursuant to or in connection with or incidental to this
Agreement or in respect of any transaction contemplated by this
Agreement or any such instrument.
14.2 The Subscribers indemnify the Unit Holder and FAI in respect of all
claims, demands, actions, proceedings, costs, expenses and liabilities
(including fines and penalties) relating to all amounts for which the
Unit Holder may be liable as a consequence of any failure by the
Subscribers to comply with the provisions of subclause 14.1.
15. TRUSTEE'S OCCUPATION OF PREMISES
The Subscribers acknowledge that the Trustee's right to occupy the
premises at 24 Market Street, Sydney was terminated (by mutual
agreement with the landlord of those premises) immediately prior to
Completion.
16. TANOA
FAI and the Unit Holder acknowledge that Tanoa enters into this
Agreement as trustee of the Principal Healthcare Finance Unit Trust
No.1 and that the obligations undertaken by Tanoa pursuant to this
agreement are in its capacity as such trustee and will have no
obligation to FAI or the Unit Holder in any other capacity.
<PAGE> 28
SCHEDULE 1
THE ACCOUNTS
<PAGE> 29
SCHEDULE 2
WARRANTIES AND REPRESENTATIONS
1. The Unit Holder is the legal and beneficial owner of the Premier
Units (other than the five units registered in the name of FAI,
in respect of which the Unit Holder is the beneficial owner). The
Premier Units comprise 100% of the issued units in ALUT and carry
with them the right to control that percentage of the voting
rights attached to the issued units in ALUT. FAI is the legal and
beneficial owner of all the issued shares in the Trustee. The
Trustee is the legal owner (in its capacity as trustee of ALUT)
of the Valued Assets.
2. The Premier Units and the Sale Shares have been duly issued and
allotted and are fully paid up.
3. The Premier Units, Sale Shares and the Valued Assets (and all
other assets of ALUT) are not subject to any liens, equities,
charges, third party rights or other encumbrances and the Unit
Holder and FAI will on Completion be entitled and competent to
require the redemption of the Premier Units, and FAI is entitled
and competent to transfer the Sale Shares without the consent of
any person or authority whatever.
4. The Trustee (in its own capacity and in its capacity as trustee
of ALUT does not hold shares or securities in any other
corporation, units in any trust or interests in any partnership,
unincorporated association, joint venture or consortium (other
than industry associations in the aged, health care and
retirement village industries) or any real estate other than the
Valued Assets, nor has it contracted to buy or agreed to take up
or acquire any shares or securities in any other corporation or
units in any trust or interest in any partnership, unincorporated
association, joint venture or consortium (other than industry
associations in the aged, health care and retirement village
industries) or any real estate other than the Valued Assets.
5. The copy of the memorandum and articles of association of the
Trustee and of the Trust Deed, signed by a director of the Unit
Holder and delivered to PHF on the date of the Agreement of which
this schedule forms part are true and complete copies of those
things.
6. Each of the Trustee and ALUT has been duly constituted and is
validly existing under the laws of its jurisdiction of
constitution and has full power, authority and right to carry on
its business. No petitions or other processes have been issued
<PAGE> 30
or are threatened to be issued against, and no resolutions have
been passed by the directors or members of, the Trustee or ALUT
to wind it up, no action has been taken or threatened to be taken
to place the Trustee or ALUT in receivership or under
administration and there are no writs of execution or other
processes issued and unsatisfied or partly unsatisfied against
any of their assets.
7. All issues and transfers of shares registered in the Trustee and
units in ALUT have been made in accordance with the requirements
of their respective constitutions and applicable legislation.
8. Neither the Trustee nor ALUT is under any obligation (conditional
or unconditional, except pursuant to the Agreement of which this
Schedule 2 forms part) to allot any shares, debentures, notes,
securities convertible into shares, units or other securities to
any person and have not offered to do so or to give and have not
given any option to subscribe for unissued shares or units.
9. To the best of the information, knowledge and belief of the Unit
Holder:
(a) all returns particulars resolutions and other documents
required to be delivered by the Trustee or ALUT to the
appropriate authorities having jurisdiction in its
jurisdiction of establishment and in each jurisdiction where
it is registered and in each jurisdiction where it carries
on business have been duly delivered; and
(b) all statutory and other records of the Trustee and ALUT
are up to date and contain full complete and accurate
records of all matters dealt with in those records.
10. There are no dividends or distributions declared and unpaid in
respect of the share capital of the Trustee or the units in ALUT.
11. The Trustee is not in its own capacity or in its capacity as the
trustee of ALUT engaged in any litigation or arbitration
proceedings, dispute of a material nature or in any proceedings
before any governmental agency or tribunal and no such
litigation, disputes or proceedings are pending or threatened by
or against any of them and it is not subject to any order or
judgment given by any court arbitrator or governmental agency or
tribunal and has not been party to any undertaking or assurance
given to any court arbitrator or governmental agency or tribunal
which is still in force.
12. No guarantee, indemnity or other surety or assurance has been
given or granted by the Trustee in its own capacity or in its
capacity as the trustee of ALUT in
<PAGE> 31
respect of the discharge of the liabilities or the performance of
the obligations (in either case whether present or future) of any
other person which will not be discharged on Completion.
13. The Trustee is not in any capacity a party to any joint venture,
consortium or partnership arrangement or agreement.
14. The Trustee has the policies of insurance detailed in the
Disclosure Letter in respect of the assets and business of ALUT
and, to the best of the information, knowledge and belief of the
Unit Holder, the Unit Holder believes that the Trustee has not
done or suffered anything to be done which has rendered or might
render those policies of insurance void or voidable.
15. The Completion Balance Sheet will contain proper provision for
all Taxes which are payable in connection with the activities of
the Trustee as trustee of ALUT up to the Completion Date
(assuming for this purpose that the last day of the current year
of income for tax purposes for ALUT is the Completion Date). This
Warranty does not extend to the consequences of any changes in
Tax legislation after the Completion Date that have retrospective
effect except to the extent that the change has been announced
before the Completion Date by press release by the Treasurer, an
Assistant Treasurer or an Acting Treasurer of the Commonwealth of
Australia or the State of New South Wales.
16. To the best of the information, knowledge and belief of the Unit
Holder, the Unit Holder believes that the Trustee has complied in
all material respects with any material obligations imposed on it
by law, industrial awards or contract applicable to the Valued
Assets. This warranty and representation does not constitute a
warranty and representation of compliance in any respect with the
Building Code of Australia or with respect to any laws relating
to town planning, local government or the protection of the
environment.
17. The Trustee has since the establishment of ALUT been the sole
trustee of ALUT and it has not carried on any business other than
acting as trustee of ALUT and has not incurred any liability
other than in that capacity and in accordance with the Trust
Deed.
18. No receiver, receiver and manager, administrator, liquidator or
provisional liquidator has been appointed to the Trustee, ALUT or
the Valued Assets.
19. The Trustee is not a party to any contract, arrangement or
obligation outside the ordinary course of its business which,
whether by reason of its nature, term,
<PAGE> 32
scope, price or otherwise, is or is likely to be of material
importance to the business, profits or assets of ALUT or which:
(a) is incapable of performance in accordance with its terms
within six months of the date on which it was entered into
or undertaken;
(b) is expected to result in a loss to ALUT on completion of
performance;
(c) is of an onerous nature, without countervailing
benefits, or cannot be fulfilled or performed by ALUT on
time and without undue or unusual expenditure, money and
effort;
(d) requires an aggregate consideration payable by ALUT in
excess of $1,000;
(e) involves the payment by ALUT by reference to
fluctuations in the Consumer Price Index or any other index;
(f) requires payment of any sum by ALUT in any currency
other than Australian dollars; or
(g) for the provision of management or similar services to
ALUT (other than by the Auditors) and which is not
terminable by it on less then three months notice without
compensation for early termination.
20. So far as the Unit Holder is aware, the copies of the Leases and
Management Agreements provided to the Subscribers are materially
correct and substantially reflect the entire agreement between
the Unit Holder and each of the respective occupiers of the
assisted living units which form part of the Properties.
21. The Disclosure Letter contains a list of the lessees under the
Leases and Management Agreements which have been made available
for inspection by the Subscribers.
22. The persons whose names are set out in the list attached to the
Disclosure Letter are all of the employees of the Trustee. The
particulars of their employment set out in that list are correct.
No employee of the Trustee has given, or has been given, notice
of termination of their employment or has indicated an intention
to terminate their employment.
23. All subsisting contracts of employment to which the Trustee is a
party are
<PAGE> 33
terminable by it on six months notice or less except to the
extent to which a court may determine that some other notice
period is required.
24. The Trustee does not make any contributions to a superannuation
fund or scheme that is a fund or scheme that provides defined
benefits.
25. As at Completion the Trustee has no liability to the
Superannuation Guarantee Charge.
26. To the best of the information, knowledge and belief of the Unit
Holder, the Unit Holder believes that all information given by or
on behalf of the Unit Holder to the Subscribers (including to
Moran Health Care Group Pty Limited and Omega Worldwide, Inc. and
their respective advisors) with respect to ALUT is correct and
complete in all material respects and none of that information is
misleading in any material respect, whether by inclusion of
misleading information or omission of material information, or
both.
27. To the best of the information, knowledge and belief of the Unit
Holder, the Unit Holder believes that all information within its
or the Trustee's possession and which could reasonably be
expected to be material for disclosure to a subscriber for value
for the Subscription Units has been disclosed in writing to the
Subscribers (including to Moran Health Care Group Pty Limited and
Omega Worldwide, Inc. and their respective advisors). Attached to
the Disclosure Letter is a list of some of the information which
the Unit Holder has disclosed in writing to the Subscribers.
28. The Trustee has not assigned, purported to assign or otherwise
relinquished its rights under the Asset Sale Agreement dated 15
August 1995 between Assisted Living Australia Limited, Assisted
Living Australia (Villages) Limited, Berkeley Village Nursing
Home Pty Limited, Windwave No 10 Pty Limited and the Trustee.
29. There have been no Consents or Determinations (as contemplated by
clause 1.1 of the Trust Deed) made, other than the Determination
a copy of which is in Schedule 4.
30. The Trustee has not distributed any part of the capital of ALUT.
31. All loans made by the Trustee to FAI or any of its subsidiaries
have been repaid in full.
32. The Trustee has on or before Completion paid to the Commonwealth
all amounts notified to the Trustee as being payable to the
Commonwealth Government arising
<PAGE> 34
out of the annual NH20 validation process that commenced in May
1998 relating to the nursing homes comprising part of the Valued
Assets whether such amount is an amount actually due or is
required to be paid on account so that the Commonwealth will
approve licences to be issued to Moran Heath Care (Australia) Pty
Limited to manage and operate the nursing homes comprising part
of the Valued Assets.
33. The Trustee is duly incorporated and has the corporate power to
own its own property and to carry on its business.
34. No action has been taken or is proposed to remove the Trustee as
trustee of ALUT.
35. The Trustee is not in default under the Trust Deed which would
have the effect of limiting or removing its right of indemnity
from the property of ALUT, or would affect its power or ability
to enter into any transaction or to perform any obligation
permitted by the Trust Deed as trustee of ALUT.
36. The Trustee and its directors and other officers have complied
with their obligations in connection with ALUT.
37. A date has not been declared pursuant to the Trust Deed as the
date on which ALUT will be vested or come to an end, and no other
action has been taken or is proposed to terminate ALUT.
38. The Trustee has not done, or failed to do, any act whereby any of
the assets of ALUT have been acquired by any other person and no
assets of ALUT are presently registered in the name of any other
person and no person, other than the Unit Holder and FAI, has
acquired any right of any kind whether vested or contingent in
any asset of ALUT.
<PAGE> 35
SCHEDULE 3
CLAIM AGAINST ASSISTED LIVING AUSTRALIA (VILLAGES) LIMITED
<PAGE> 36
SCHEDULE 4
TRUST DEED DETERMINATION (WARRANTY 29)
<PAGE> 37
EXECUTED AS AN AGREEMENT.
Signed by the attorney of PREMIER CARE AUSTRALIA (HOLDINGS)
PTY LIMITED under power of attorney in the
presence of:
------------------------------------
Signature of attorney
------------------------------- ------------------------------------
Signature of witness Office held
------------------------------- ------------------------------------
Name of witness (print) Name of attorney (print)
Signed by the attorney of FAI INSURANCES
LIMITED under power of attorney in the presence
of:
------------------------------------
Signature of attorney
------------------------------- ------------------------------------
Signature of witness Office held
------------------------------- ------------------------------------
Name of witness (print) Name of attorney (print)
<PAGE> 38
Signed by the attorney of PHF NO.1 PTY LIMITED
under power of attorney in the presence of:
------------------------------------
Signature of attorney
------------------------------- ------------------------------------
Signature of witness Office held
------------------------------- ------------------------------------
Name of witness (print) Name of attorney (print)
Signed by the attorney of TANOA PTY LIMITED
under power of attorney in the presence of:
------------------------------------
Signature of attorney
------------------------------- ------------------------------------
Signature of witness Office held
------------------------------- ------------------------------------
Name of witness (print) Name of attorney (print)
<PAGE> 39
Signed by the attorney of PREMIER CARE AUSTRALIA
PTY LIMITED under power of attorney in the presence of:
------------------------------------
Signature of attorney
------------------------------- ------------------------------------
Signature of witness Office held
------------------------------- ------------------------------------
Name of witness (print) Name of attorney (print)
<PAGE> 40
REDEMPTION AND SUBSCRIPTION AGREEMENT
INDEX
1. DEFINITIONS AND INTERPRETATION.............................
2. REDEMPTION OF PREMIER UNITS.
3. REDEMPTION AMOUNT AND ASSET SALE ADJUSTMENT
4. SUBSCRIPTION FOR UNITS
5. COMPLETION.........
6. CHANGE OF NAME.....
7. POST-COMPLETION ADJUSTMENTS................................
8. DEBTORS.
9. WARRANTIES AND REPRESENTATIONS.............................
10. EXPERT RESOLUTION.....
11. CLAIM AGAINST ASSISTED LIVING AUSTRALIA GROUP.............
12. GUARANTEE FROM FAI
13. GENERAL
14. STAMP DUTY AND OTHER IMPOSTS..............................
15. TRUSTEE'S OCCUPATION OF PREMISES
16. TANOA
<PAGE> 41
-1-
RELATIONSHIP AGREEMENT
THIS AGREEMENT IS MADE ON 1998
PARTIES
OMEGA WORLDWIDE, INC. of 905 W Eisenhower Circle, Suite 110, Ann Arbor,
Michigan 48103, United States of America (OMEGA)
PHF NO.1 PTY LIMITED ACN 082 747 313 of Level 12, 255 Elizabeth Street,
Sydney, New South Wales, Australia (PHF 1)
PHF NO.2 PTY LIMITED ACN 082 747 288 of Level 12, 255 Elizabeth Street,
Sydney, New South Wales, Australia (PHF 2)
TANOA PTY LIMITED ACN 001 396 989 of Level 12, 255 Elizabeth Street, Sydney,
New South Wales, Australia (TANOA)
MINDRA PTY LIMITED ACN 001 731 399 of Level 12, 255 Elizabeth Street,
Sydney, New South Wales, Australia (MINDRA)
BEHEER - EN BELEGGINGSMAATSCHAPPIJ DILAVA BV of Drentestraat 20, (1083
HK) Amsterdam, Netherlands (DILAVA)
BEHEER - EN BELEGGINGSMAATSCHAPPIJ ROCLA BV of Drentestraat 20, (1083
HK) Amsterdam, Netherlands (ROCLA)
MORAN HEALTH CARE (AUSTRALIA) PTY LIMITED ACN 082 466 457 of 13 - 15 Bridge
Street Sydney, New South Wales, Australia (MORAN)
MORAN HEALTH CARE GROUP PTY LIMITED ACN 008 585 242 of 13 - 15 Bridge Street
Sydney, New South Wales, Australia (COVENANTOR)
BACKGROUND
A The Covenantor is the sole beneficiary of the Moran Trust.
B Moran wishes to lease the nursing homes and assisted living units
owned by Premier Care Australia Pty Limited as trustee for the
Assisted Living Unit Trust at the date of this agreement and have
the benefit of certain other assets of the Assisted Living Unit
Trust in connection with those nursing homes and assisted living
units.
C At the request of Moran and the Covenantor:
<PAGE> 42
-2-
the Principal Healthcare Finance Unit Trust No.1, the
Principal Healthcare Finance Unit Trust No.2, the Principal
Healthcare Finance Unit Trust No.3 and the Principal
Healthcare Finance Unit Trust No.4, have been established
with Tanoa, PHF 1, Mindra and PHF 2 being respectively the
trustees of them;
Rocla, a wholly owned subsidiary of Omega, has become a
unit holder in the Principal Healthcare Finance Unit Trust
No.3, Dilava, a wholly owned subsidiary of Omega, has
become a unit holder in the Principal Healthcare Finance
Unit Trust No.4, Mindra the trustee of Principal Healthcare
Finance Unit Trust No.3 and PHF 2 the trustee of Principal
Healthcare Finance Unit Trust No.4 have respectively become
a unit holder in the Principal Healthcare Finance Unit
Trust No.1 and the Principal Healthcare Finance Unit Trust
No. 2.
D In order for Moran to obtain the lease of the nursing homes and
assisted living units owned by Premier Care Australia Pty Limited
as trustee for the Assisted Living Unit Trust at the date of this
agreement and have the benefit of certain other assets of the
Assisted Living Unit Trust in connection those nursing homes and
assisted living units Moran and the Covenantor have requested
Omega, Dilava, Rocla and the Principal Trustees as trustees of the
Principal Trusts to do all acts matters and things including
providing money by subscription for shares in Dilava and Rocla,
units in the Principal Healthcare Finance Unit Trust No.1, the
Principal Healthcare Finance Unit Trust No.2, the Principal
Healthcare Finance Unit Trust No.3 and the Principal Healthcare
Finance Unit Trust No 4, by arranging finance and entering into
agreements to cause Tanoa and PHF 1 to become the owner of all of
the issued units in the Assisted Living Unit Trust by:
Tanoa as trustee of Principal Healthcare Finance Unit Trust
No.1 becoming a unit holder in respect of half of the
issued units in the Assisted Living Unit Trust;
PHF 1 as trustee of Principal Healthcare Finance Unit Trust
No.2 becoming a unit holder in respect of half of the
issued units in the Assisted Living Unit Trust; and
Omega financing or procuring the finance of the
acquisitions referred to in paragraph D (a) and (b).
E The basis of the arrangement is that the assets of the Assisted
Living Unit Trust at the date of this agreement will be made
available to Moran in return for rental payments made by Moran.
Having regard to the differing nature of the assets, specific
arrangements are set out in this agreement in relation to certain
specific assets to give effect to the basic intention of the
parties. In the case of assets which are determined to be surplus
to the needs of the parties (such as Surplus Land) specific
arrangements are set out in this agreement to enable them to be
identified, realised and the proceeds of realisation paid to the
former unit holders of the Assisted Living Unit Trust.
<PAGE> 43
-3-
F Omega, Dilava, Rocla and the Principal Trustees are willing to
accede to the requests of Moran and the Covenantor on the terms
and conditions of this agreement.
AGREEMENT
DEFINITIONS
In this agreement:
AGREED DATE means the business day preceding the first anniversary
of the Completion Date;
AGREED DISCOUNTED VALUE, COST and TRUSTEE PROFIT COMPONENT in
relation to any parcel of Vacant Land means the amount set out
beside the description of each parcel of Vacant Land in the column
so titled in Schedule A;
ASSET SALE ADJUSTMENT has the same meaning as is attributed to
those words in the RSA.
ASSUMPTION AGREEMENT means the assumption agreement in the form
set out in Schedule B.
ALU means a part of a Property known as an "assisted living unit"
or a "self care unit".
ALU LEASE means a lease of an ALU.
COMMENCING DATE means the date that Completion takes place.
COMPLETION has the same meaning as is attributed to that word in
the RSA.
COMPLETION DATE has the same meaning as is attributed to those
words in the RSA.
COMPLETION BALANCE SHEET has the same meaning as is attributed to
those words in the RSA.
CREDITORS means any amounts owing by the Trustee which are
recognised in the Completion Balance Sheet.
DEBTS means any debts or other sums due or payable to the Trustee
which are recognised in the Completion Balance Sheet.
DISPOSAL means disposal or deemed disposal pursuant to the Tax
Act.
<PAGE> 44
-4-
EMPLOYEES means those individuals employed by the Trust on the
Completion Date.
INDEMNIFIED PARTIES means the Trustee, the Principal Trustees,
Omega, Dilava, Rocla and any beneficiary of the Trust and the
Principal Trusts at any time.
LEASE means the lease of the Properties in the form set out in
Exhibit A and initialled by John Hartigan for Moran and the
Covenantor and by Robert Tobias for the other parties.
LEASED PROPERTY has the same meaning as is attributed to that term
in the Lease.
MHCG LEASE GUARANTEE means the lease guarantee set out in Exhibit
B and initialled by John Hartigan for Moran and the Covenantor and
by Robert Tobias for the other parties.
MORAN'S DMFS means any agreement entered into by Moran whereby
Moran must provide services to a person in respect of the
occupation of an ALU which is in a form approved in writing by the
Trustee.
MORAN SECURITY DOCUMENTS means the charge in the form set out in
Exhibit C and initialled by John Hartigan for Moran and the
Covenantor and by Robert Tobias for the other parties, the
mortgage of shares set out in Exhibit D and initialled by John
Hartigan for Moran and the Covenantor and by Robert Tobias for the
other parties and the mortgage of units in the Moran Trust set out
in Exhibit E and initialled by John Hartigan for Moran and the
Covenantor and by Robert Tobias for the other parties.
MORAN TRUST means the trust known as "The Moran Health Care
Australia Trust" constituted by a deed of trust dated 13 May 1998
between Moran Health Care (Australia) Pty Limited as trustee and
Moran Health Care Group Pty Limited as original unit holder.
MOTOR VEHICLES means the motor vehicles particulars of which are
set out in Schedule C.
NURSING HOME AGREEMENTS means the agreements between the Trustee
and nursing home residents at Completion.
ORIGINAL UNIT HOLDERS means FAI Insurances Limited and Premier
Care Australia (Holdings) Pty Limited.
PRINCIPAL TRUSTEES means the trustees for the time being of the
Principal Trusts.
PRINCIPAL TRUSTS means the following trusts:
<PAGE> 45
-5-
the trust known as the "Principal Healthcare Finance Unit
Trust No.1" constituted by a deed of trust dated 27 May
1998 between Tanoa as trustee and Mindra as original unit
holder;
the trust known as the "Principal Healthcare Finance Unit
Trust No.2" constituted by a deed of trust dated 27 May
1998 between PHF 1 as trustee and PHF 2 as original unit
holder;
the trust known as the "Principal Healthcare Finance Unit
Trust No.3" constituted by a deed of trust dated 27 May
1998 between Mindra as trustee and Rocla as original unit
holder; and
the trust known as the "Principal Healthcare Finance Unit
Trust No.4" constituted by a deed of trust dated 27 May
1998 between PHF 2 as trustee and Dilava as original unit
holder.
PROCUREMENT AGREEMENT means the agreement of that name dated the
same date as this agreement between Moran, FAI Insurances Limited,
the Covenantor and Douglas John Moran, Greta Richmond Moran, Peter
Godfrey Moran and Shane Moran.
PROPERTIES means the properties particulars of which are set out
in Schedule D.
SURPLUS LAND means the Vacant Land which is determined to be sold
pursuant to clause 15.6.1;
RENT means the rent payable from time to time pursuant to the
Lease.
RSA means the "Redemption and Subscription Agreement" so called
between FAI Insurances Limited, Premier Care Australia (Holdings)
Pty Limited, Premier Care Australia Pty Limited, Tanoa and PHF 1
and dated the
same date as this agreement.
SALE ASSETS means:
(a) the Leased Property; and
(2) where the Trustee Disposes of the Trustee's DMFs
in connection with the Disposal of the Leased
Property following termination of the Lease, the
Trustee's DMFs to the extent that the Trustee has
a cost base in them, as that term is used in the
Tax Act, at the date of Disposal.
TAX means all forms of taxation, duties, imposts, fees, levies,
deductions or withholdings whether of Australia or elsewhere,
including income tax, corporation tax, capital gains tax, pay as
you earn, prescribed payments, reportable payments, withholding
tax, superannuation guarantee charge, customs and other import or
export duties, excise duties, sales tax, stamp duty,
<PAGE> 46
-6-
land tax, pay-roll tax, FID, BAD, Workcover, local rates and
taxes, fringe benefits tax, group tax or other similar
contributions and any interest, penalty, surcharge or fine in
connection with it.
TAX ACT means the Income Tax Assessment Act 1936 and includes the
Income Tax Assessment Act 1997.
TERMINATION DATE means the day preceding the 30th anniversary of
the Commencing Date.
TRANSACTION DOCUMENTS means the Lease, the Moran Security
Documents, the MHCG Lease Guarantee and the Procurement Agreement.
TRUST means the trust known as the "Assisted Living Unit Trust"
constituted by a deed of trust dated 11 August 1995 between
Assisted Living (Holdings) Pty Limited (now named Premier Care
Australia Pty Limited) as trustee and Metlife Australia (Holdings)
Pty Limited (now named Premier Care Australia (Holdings) Pty
Limited) and FAI Deposit Co Pty Limited as original unit holders.
TRUSTEE means the trustee for the time being of the Trust.
TRUSTEE'S DMFS means any agreement which is a binding obligation
on the Trustee on the date of this agreement whereby the Trustee
must provide services to a person in respect of the occupation of
an ALU.
VACANT LAND means each parcel of land described in Schedule A;
$ means Australian dollars.
LEASE
ENTRY INTO THE LEASE
On the Completion Date the Trustee, the Covenantor and Moran must
enter into the Lease.
EXECUTION OF THE LEASE
Moran must execute the Lease and deliver it to Omega on the date
of this agreement. Omega will hold the Lease on behalf of the
Trustee in escrow pending Completion.
The Trustee must execute the Lease on the Completion Date.
COMPLETION AND EXECUTION
The Trustee must cause the Lease to be completed on the Completion
Date by the inclusion of:
the Commencing Date;
<PAGE> 47
-7-
the Termination Date;
any other details or amendments necessary to record
properly the agreement between the Trustee and Moran and to
put the Lease in registrable form.
The Trustee must promptly lodge the Lease for registration after
the Commencement Date and after it has been duly stamped, and once
registered must return a copy to Moran.
LIABILITY RUNS FROM COMPLETION
On and from the Completion Date the Trustee, the Covenantor and
Moran will each be bound by all of the terms of the Lease as if it
had been completed, duly executed and delivered by those parties
as required by clause 2.3.
MORAN SECURITY DOCUMENTS AND MHCG LEASE GUARANTEE
ENTRY INTO MORAN SECURITY DOCUMENTS
On the Completion Date Moran must enter into the Moran Security
Documents.
EXECUTION OF MORAN SECURITY DOCUMENTS
Moran must execute the Moran Security Documents, complete
Australian Securities Commission Forms 309 and 350 in respect of
the documents set out in Exhibits C, D and E and deliver them to
Omega on the date of this agreement. Omega will hold the documents
and forms in escrow pending Completion.
MHCG LEASE GUARANTEE
On the Completion Date MHCG must enter into the MHCG Lease
Guarantee.
EXECUTION OF MHCG LEASE GUARANTEE
MHCG must execute the MHCG Lease Guarantee and deliver it to Omega
on the date of this agreement. Omega will hold the MHCG Lease
Guarantee in escrow pending Completion.
<PAGE> 48
-8-
RELINQUISHMENT OF LICENCES
TRUSTEE TO RELINQUISH
On the Completion Date the Trustee will relinquish all licences
and approvals that it holds in relation to the management and
operation of the nursing homes owned by it at the date of this
agreement where a corresponding licence or approval is held by
Moran or will be granted to Moran upon relinquishment of a licence
or approval held by the Trustee.
MORAN TO MAINTAIN
So long as the Trustee holds any licence or approval in relation
to the management and operation of the nursing homes owned by it
at the date of this agreement Moran will do all things and take
all actions at its own cost necessary to ensure that the licence
or approval is maintained by the Trustee unless the Trustee does a
thing or takes an action which prevents Moran meeting its
obligations pursuant to this clause.
NURSING HOME AGREEMENTS
The Trustee must, at the cost of Moran, deal with the Nursing Home
Agreements as Moran, acting reasonably, directs and must hold all
amounts received by it pursuant to the Nursing Home Agreements for
Moran or as it directs.
Moran unconditionally and irrevocably indemnifies the Trustee
against all losses, damages, costs, charges, liabilities and
expenses which the Trustee may at any time suffer or incur in
relation to any Nursing Home Agreement.
COMMONWEALTH FUNDING ADJUSTMENTS
To the extent that Moran is required to make a payment or incurs a
reduction of a payment from the Commonwealth Government
contemplated by clause 7.7(a) of the RSA, the Trustee will pay to
Moran an amount equal to the amount the Trustee receives from
Premier Care Holdings (Australia) Pty Limited pursuant to that
clause.
To the extent that Moran receives a payment or credit contemplated
by clause 7.7(b) of the RSA, Moran will pay to the Trustee an
amount equal to the amount the Trustee pays to Premier Care
Holdings (Australia) Pty Limited pursuant to that clause.
<PAGE> 49
-9-
ACQUISITION OF MOTOR VEHICLES
SALE AND PURCHASE
On the Completion Date the Trustee must sell and Moran must buy
the Motor Vehicles for an amount equal to the amount attributed to
the Motor Vehicles in the Completion Balance Sheet.
PAYMENT FOR MOTOR VEHICLES
Moran must pay to the Trustee the purchase price for the Motor
Vehicles calculated in accordance with clause 5.1 by bank cheque
on the business day preceding the first anniversary of the
Completion Date.
EMPLOYEES
EMPLOYMENT BY MORAN
On the Completion Date Moran must offer in writing to employ all
of the Employees with effect from the Completion Date, on terms
and conditions no less favourable than those on which they are
employed by the Trustee on the Completion Date.
NON-TRANSFERRING EMPLOYEES
The Trustee must terminate the services of the Employees who do
not accept the offer of employment with Moran (NON-TRANSFERRING
EMPLOYEES) with effect from the Completion Date and Moran must pay
all amounts then due to each of those Employees on termination of
employment.
TRANSFERRING EMPLOYEES
The Trustee must release the Employees who accept the offer of
employment with Moran (TRANSFERRING EMPLOYEES) from their
employment with the Trustee with effect from the Completion Date.
EMPLOYEE OBLIGATIONS
Moran must assume all of the obligations of the Trustee to the
Employees including all amounts due to:
each of the Non-Transferring Employees in respect of the
termination by the Trustee of their employment; and
each of the Transferring Employees on the Completion Date
relating to all periods of service with the Trustee or any
related body corporate of FAI Insurances Limited; and
<PAGE> 50
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unconditionally and irrevocably indemnifies the Trustee
against all losses, damages, costs, charges, liabilities
and expenses which the Trustee may at any time suffer or
incur in relation to all those obligations.
DEBTS AND CREDITORS
MORAN TO COLLECT DEBTS AS AGENT OF THE TRUSTEE
From the Completion Date Moran must, at its own cost, use its
reasonable endeavours to collect the Debts as agent of the Trustee
and for that purpose Moran is authorised to demand, sue for and
enforce payment of and receive and give receipts for all or any of
the Debts as effectively as the Trustee could itself do.
DISCHARGE OF CREDITORS
Moran must discharge the Creditors as they fall due on behalf of
the Trustee and to obtain receipts from all or any of the
Creditors as effectively as the Seller could itself do.
CLAIMS
Moran is authorised as agent of the Trustee to demand, sue for and
enforce payment of and receive and give receipts for all or any of
the Debts pursuant to clause 8 [Debtors] of the RSA as effectively
as the Trustee could itself do.
The Trustee must execute or give effect to any assignment required
to be made pursuant to clause 8 [Debtors] of the RSA.
LOANS TO MORAN
MAKING LOANS
On the Completion Date the Trustee will lend to Moran free of
interest any money to which the Trustee is entitled on the
Completion Date which is:
attributable to the conduct of the business of the Trust up
to the Completion Date; and
is held by the Trustee in an account over which the Trustee
exercises control;
except to the extent the Trustee is prohibited by agreement with
a third party or law.
If Moran and MHCG is not in default of any obligation pursuant to
any Transaction Document to which it is a party or this
agreement, the Trustee must within 7 days of receipt lend to
Moran free of interest any money that the Trustee receives prior
to the first anniversary of the Completion Date which has
<PAGE> 51
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not been previously received by Moran:
being any amount that Premier Care Australia (Holdings) Pty
Limited pays to the Trustee pursuant to clause 7 [Post Completion
Adjustments] of the RSA; and
in respect of any Debts.
UTILISATION OF LOANS
Moran may discharge from any loan made pursuant to this clause its
obligations under clause 7.2 [Discharge Creditors].
REPAYMENT OF LOANS
Moran must repay all loans made to it pursuant to this clause not
utilised pursuant to clause 8.2 by bank cheque on the business day
preceding the first anniversary of the Completion Date.
TRUSTEE'S DMFS
MORAN MUST DISCHARGE
Moran must discharge at its own cost all of the obligations of the
Trustee pursuant to the Trustee's DMFs during the term of the
Lease or on the termination of the Trustee's DMFs whichever is the
earlier.
COLLECTION OF DMFS
In the period commencing on the Completion Date and ending on the
first anniversary after the Completion Date Moran must:
at its own cost as agent of the Trustee collect all money
owing or payable to the Trustee pursuant to the Trustee's
DMFs and for that purpose Moran is authorised to demand,
sue for and enforce payment of and receive and give
receipts for all or any amounts payable pursuant to the
Trustee's DMFs as effectively as the Trustee could itself
do; and
pay all money received pursuant to clause 9.2.1(a) into a
bank account nominated by the Trustee.
COLLECTION OF DMFS AFTER FIRST ANNIVERSARY
If Moran and MHCG is not in default of any obligation pursuant to
any Transaction Document to which it is a party or this agreement
Moran may following the first anniversary after the Completion
Date at its own cost as agent of the Trustee collect all money
owing or payable to the Trustee pursuant to the Trustee's DMFs and
for that purpose Moran is authorised to demand, sue for and
enforce payment of and receive and give receipts for all or any
amounts
<PAGE> 52
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payable pursuant to the Trustees DMFs as effectively as the
Trustee could itself do.
TRUSTEE TO DIRECT
After the Completion Date the Trustee must execute or provide for
the execution of notices prepared by Moran to each counter party
to the Trustee's DMFs directing the person to pay all money owing
or payable to the Trustee pursuant to the Trustee's DMFs to Moran
as collecting agent for the Trustee.
OMEGA TO PAY CONSIDERATION
If Moran and MHCG is not in default of any obligation pursuant to
any Transaction Document to which it is a party or this agreement
subject to clause 9.5.3 the Trustee must pay to Moran as
consideration for the obligations assumed by Moran pursuant to
clause 9.1 an amount equal to 99.90% of the income accrued after
the Completion Date in the accounts of the Trust in respect of the
Trustee's DMFs.
Subject to clause 9.5.3 the obligation of the Trustee to pay any
amount to Moran pursuant to clause 9.5.1 is only to be satisfied
by the payment of cash to Moran by the Trustee as and when cash is
received by the Trustee from the Trustee's DMFs.
Subject to clause 11.5 the Trustee will not be liable to pay any
consideration to Moran for the obligations assumed by Moran
pursuant to clause 9.1 in respect of any ALU Lease between the
Completion Date and the first anniversary of the Completion Date.
If Moran and MHCG is not in default of any obligation pursuant to
any Transaction Document to which it is a party or this agreement
then following the first anniversary after the Completion Date
Moran may retain any money owing or payable to the Trustee
pursuant to the Trustee's DMFs that it collects pursuant to clause
9.3 as payment and in satisfaction of the Trustee's obligation
pursuant to clause 9.5.1 to the extent of such retention.
To the extent that any amount is accrued by the Trustee in respect
of the Trustee's DMFs at the Completion Date (ACCRUED DMFS) Moran
may lend to the Trustee up to a sum equal to the accrued DMFs not
paid to the Trustee in cash before the business day preceding the
first anniversary of the Completion Date (FIRST MORAN LOAN).
The Trustee must repay the first Moran loan from the cash received
by the Trustee attributable to the accrued DMFs. Other than as
specifically provided for in this clause the Trustee will have no
other obligation to Moran in respect of the first Moran loan
including the payment of interest and Moran will have no other
recourse against the Trustee in respect of repayment of the first
Moran loan.
<PAGE> 53
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To the extent that an amount is recognised as income of the Trust
in respect of the Trustee's DMFs (INCOME DMFS) in the period
between the Completion Date and the first anniversary of the
Completion Date and such amount is not received in cash by the
first anniversary of the Completion Date Moran may lend to the
Trustee a sum equal to that amount (SECOND MORAN LOAN).
The Trustee must repay the second Moran loan from the cash
received by the Trustee attributable to the income DMFs. Other
than as specifically provided for in this clause the Trustee will
have no other obligation to Moran in respect of the second Moran
loan including the payment of interest and Moran will have no
other recourse against the Trustee in respect of repayment of the
second Moran loan.
ALU LEASES
MORAN TO MARKET AND SELL ALUS
Moran must procure at its own cost the grant of an ALU Lease for a
term not exceeding 99 years which is in a form approved in writing
by the Trustee in respect of each ALU that is not subject to an
ALU Lease on the Completion Date and must at its own cost grant
ALU Leases in the name of the Trustee.
TRUSTEE TO GIVE POWER OF ATTORNEY
For so long as Moran can grant ALU Leases pursuant to this
agreement the Trustee must give to Moran, and not revoke earlier
than the date of termination of the Lease, a power of attorney in
the form of Schedule E. The Trustee may at the request of Moran
revoke the power of attorney and grant a new power of attorney in
a form agreed between the Trustee and Moran.
PERFORMANCE OF LESSORS OBLIGATIONS
Moran must perform at its own cost all of the obligations of the
Trustee under every ALU Lease during the term of the Lease.
COLLECTION BY MORAN
In the period commencing on the Completion Date and ending on the
first anniversary after the Completion Date Moran must:
at its own cost as agent of the Trustee collect all money
owing or payable to the Trustee in respect of the grant of
each ALU Lease and for that purpose Moran is authorised to
demand, sue for and enforce payment of and receive and give
receipts for all or any amounts payable in respect of the
grant of each ALU Lease as effectively as the Trustee could
itself do; and
pay all money received pursuant to clause 10.4.1(a) into a
bank account nominated by the Trustee.
<PAGE> 54
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If Moran and MHCG is not in default of any obligation pursuant to
any Transaction Document to which it is a party or this agreement
Moran may following the first anniversary after the Completion
Date at its own cost as agent of the Trustee collect all money
owing or payable to the Trustee in respect of the grant of each
ALU Lease and for that purpose Moran is authorised to demand, sue
for and enforce payment of and receive and give receipts for all
or any amounts payable in respect of the grant of each ALU Lease
as effectively as the Trustee could itself do.
TRUSTEE TO PAY CONSIDERATION
If Moran and MHCG is not in default of any obligation pursuant to
any Transaction Document to which it is a party or this agreement
subject to clause 10.5.2 the Trustee must pay to Moran as
consideration for the obligations assumed by Moran pursuant to
clause 10.1 an amount equal to 99.90% of the amounts actually
received by the Trustee pursuant to the grant of each ALU Lease
granted after the Completion Date.
Subject to clause 11.5 the Trustee will not be liable to pay any
consideration to Moran for the obligations assumed by Moran
pursuant to clause 10.1 in respect of any ALU Lease granted during
the period between the Completion Date and the first anniversary
of the Completion Date.
If Moran and MHCG is not in default of any obligation pursuant to
any Transaction Document to which it is a party or this agreement
then following the first anniversary after the Completion Date
Moran may retain any money owing or payable to the Trustee in
respect of the grant of each ALU Lease granted after the first
anniversary of the Completion Date that it collects pursuant to
clause 10.4 as payment and in satisfaction of the Trustees
obligation pursuant to clause 10.5.1 to the extent of such
retention.
TRUST DISTRIBUTIONS
INTRODUCTION
It is envisaged that the Original Unit Holders may receive through
distributions of income and capital of the Trust:
a share of income for the 1998 and/or 1999 years of income;
distributions of capital of the Trust representing assets
not required by Moran for the purpose of carrying on its
business.
<PAGE> 55
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TRUSTEE MAY MAKE DISTRIBUTIONS TO THE ORIGINAL UNIT HOLDERS
If on the business day preceding the first anniversary of the
Completion Date or the second anniversary of the Completion Date
the Trustee is satisfied that:
it has available in cash, income or capital for the purpose
of the Trust Deed attributable to any asset held by the
Trustee on the Completion Date, not being an asset that is:
Leased Property;
money subscribed for units in the Trust;
money loaned to the Trustee by Omega;
any amount contemplated by clause 20.2.4(e); or
is the Asset Sale Adjustment.
after making allowance for its liabilities as at Completion
(other than any liability under any bill of exchange issued
on the Completion Date) (DISTRIBUTABLE AMOUNT);
it is able to distribute the distributable amount to the
Original Unit Holders so that the Original Unit Holders
will have a vested and indefeasible interest in any such
distribution;
no Indemnified Party will have any liability for any Tax in
connection with the distribution or any act matter or thing
that is done to enable the Trustee to make the
distribution;
after consultation with Moran the Trustee may in its
absolute discretion distribute so much of that income or
capital as it determines to the Original Unit Holders in
the proportion that they held units in the Trust
immediately preceding the Completion Date.
MAXIMUM DISTRIBUTION IN YEAR ONE
The Trustee may only distribute capital and income to the Original
Unit Holders to the extent that the total amount of capital and
income to be distributed to the Original Unit Holders during the
twelve months immediately preceding the first anniversary of the
Completion Date does not exceed $14,500,000 less the sum of the
amounts contemplated by clauses 2.2.1 (a) and (b) of the
Procurement Agreement.
MAXIMUM DISTRIBUTION IN YEAR TWO
The Trustee may distribute capital to the Original Unit Holders
during the twelve months immediately preceding the second
anniversary of the Completion Date to a maximum of $3,500,000.
<PAGE> 56
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DISTRIBUTIONS NOT MADE OR RECOVERED
If the Trustee does not distribute to the Original Unit Holders
the income and capital referred to in clause 11.1(a) or only
distributes to the Original Unit Holders part only of the income
and capital referred to in clause 11.1 the Trustee must pay to
Moran an amount equal to 99.90% of so much of the distributable
amount as represents income of the Trust and 100% of so much of
the distributable amount as represents capital of the Trust that
is not distributed as additional consideration for its obligations
under clause 7 (Debts and Creditors), clause 9 (Trustee's DMFs)
and clause 10 (ALU Leases) for the period between the Completion
Date and the first anniversary of the Completion Date.
If the Trustee recovers any distribution made after the Completion
Date from the Original Unit Holders pursuant to clause 2.2.16 of
the Procurement Agreement the Trustee must pay the amount of the
distribution recovered, less any costs of recovering the amount,
to Moran within 7 days of its receipt by the Trustee.
MORAN TO ACCOUNT
ACCOUNTING PRIOR TO FIRST ANNIVERSARY
Moran must provide to the Trustee on the fifth business day prior
to the first anniversary of the Completion Date a summary of the
transactions contemplated by clauses 4, 5, 6 ,7, 8, 9, 10 and 11
giving such particulars as the Trustee may reasonably require for
the period from the Completion Date to the tenth business day
prior to the first anniversary of the Completion Date in a format
and giving such particulars as the Trustee may reasonably require
to undertake a complete accounting between it and Moran.
ACCOUNTING AFTER FIRST ANNIVERSARY
Moran must provide to the Trustee on such occasions as the Trustee
may reasonably require a statement of every transaction
contemplated by clauses 4, 5, 6 ,7, 8, 9, 10 and 11 for any period
reasonably required by the Trustee in a format and giving such
particulars as the Trustee may reasonably require to undertake a
complete accounting between it and Moran.
OTHER MONEY ATTRIBUTABLE TO MORAN
If Moran and MHCG is not in default of any obligation pursuant to
any Transaction Document to which it is a party or this agreement,
any amount received by the Trustee other than:
a payment specifically required to be made by Moran to the
Trustee pursuant to this agreement;
income or capital to be distributed to the Original Unit
Holders pursuant to clause 11;
<PAGE> 57
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the amount of 0.10% retained by the Trustee pursuant to
clauses 9.5.1, 10.5.1, 11.5.1 and this clause;
an amount specifically dealt with under a provision of this
agreement, the RSA or the Procurement Agreement;
any other amount paid pursuant to the Lease; or
an amount unrelated to the assets the subject of this
agreement (including the Leased Property) or the business
to be carried on by Moran utilising those assets;
must be paid by the Trustee as to 99.90% of the amount to Moran as
additional consideration for its obligations under clause 7 (Debts
and Creditors), clause 9 (Trustee's DMFs) and clause 10 (ALU
Leases).
RSA WARRANTY CLAIMS
INDEMNIFIED PARTY TO CLAIM FOR BREACH OF A WARRANTY
To the extent that an Indemnified Party can make a claim for
breach of a warranty pursuant to the RSA (INDEMNIFIED CLAIM) the
Indemnified Party will at the request of Moran make and prosecute
the indemnified claim to the extent it is able pursuant to the RSA
at the cost and expense of Moran.
An Indemnified Party will have no obligation to make or prosecute
an indemnified claim pursuant to clause 14.1.1 unless, acting
reasonably, it is of the opinion that the indemnified claim is
sustainable.
MORAN TO FUND CLAIMS
An Indemnified Party may request Moran from time to time to put it
in funds to make and prosecute the indemnified claim and unless
Moran puts the Indemnified Party in funds the Indemnified Party
may decline to make or prosecute the indemnified claim or to
continue to make or prosecute the indemnified claim until it is
put in funds.
To the extent the Indemnified Party recovers any costs
attributable to the indemnified claim it will first reimburse
itself for any costs expended from its own funds in connection
with the indemnified claim and to the extent of any surplus will
reimburse that amount to Moran.
SET OFF UNDER THIS AGREEMENT
In respect of any amount received by the Indemnified Party, other
than costs attributable to the indemnified claim, the amount will
be dealt with as follows:
to the extent the Indemnified Party may or would have any
claim against Moran pursuant to any provision of this
agreement in respect of the same
<PAGE> 58
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subject matter as the indemnified claim the amount will be
set off against any such claim; and
the balance must be paid to Moran.
SALE OF VACANT LAND
BASIS OF ARRANGEMENT
The Trustee and Moran have agreed to enter into the arrangements
set out below in relation to the Surplus Land, to the intent that
Moran is to have the commercial risk of completing the sale of all
Surplus Land prior to the Agreed Date at the Agreed Discounted
Value and is to have the benefit of any amount realised from the
sale of any Surplus Land which exceeds the Agreed Discounted Value
of that Surplus Land in accordance with the terms set out below.
OBLIGATIONS OF MORAN
Moran is solely responsible for all expenses in relation to the
disposal of the Surplus Land including without limitation:
obtaining of all regulatory consents and planning
approvals,
any necessary expenses of sub-division, preparation of
marketing materials and contracts for the sale of Surplus
Land,
the appointment and payment of appropriate real estate
agents and
all other costs of the Trustee including:
the costs associated with the surrender of the
Lease in respect of the Surplus Land;
the costs of obtaining any consent from any
financier, lender or other person in any capacity
paid or payable by the Trustee in connection with
any such sale;
and to the extent that any amount is paid or payable by the
Trustee pursuant to this clause 15.2 the Trustee may deduct
the same from any payment that it is obliged to make to
Moran pursuant to any provision of this clause 15.
SALE OF SURPLUS LAND WITHIN 12 MONTHS
If the sale of all or any of the Surplus Land is completed prior
to the Agreed Date, the Trustee is entitled to receive on
completion of such sale all of the consideration received for the
sale not exceeding the Agreed Discounted Value and Moran is
entitled to any amount of consideration in excess of the Agreed
<PAGE> 59
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Discounted Value.
To the extent that the sale of any Surplus Land is completed on or
before the Agreed Date and the sale price is less than the Agreed
Discounted Value, Moran will pay to the Trustee the difference on
the Agreed Date.
SALE OF SURPLUS LAND AFTER 12 MONTHS
If the sale of any of the Surplus Land is completed after the
Agreed Date then to the extent that Moran has paid the Trustee the
amounts referred to in clause 15.5, Moran shall be entitled on
completion to receive from the purchaser of the Surplus Land any
amount payable by the purchaser for the Surplus Land in excess of
the Cost of the Surplus Land and the Trustee is entitled to
receive an amount equal to the Cost of the Surplus Land but must
immediately repay any loan made to the Trustee pursuant to clause
15.5 to Moran in respect of that parcel of Surplus Land.
PAYMENT ON THE AGREED DATE
If for any reason whatsoever, any Surplus Land is not sold prior
to the Agreed Date, Moran may pay to the Trustee on that date in
cleared funds the Agreed Discounted Value of that Surplus Land of
which the Trustee Profit Component will vest absolutely in the
Trustee and the Cost will be treated as an interest free loan from
Moran to the Trustee which is only repayable out of the proceeds
of sale of the relevant parcel of Surplus Land. If for any reason
whatsoever the Surplus Land is sold at a price which is less than
the Cost of that parcel of Surplus Land, Moran must pay the
difference to the Trustee who shall immediately repay the loan
referred to above.
DETERMINATION OF SURPLUS LAND
Before the Agreed Date, the Trustee and Moran must meet to
determine which of the Vacant Land, if any, is to be sold. If
either Moran or the Trustee decide that any land is not to be sold
or fail to make a decision that particular Vacant Land is to be
sold prior to the Agreed Date, it will cease to be Surplus Land
for the purposes of this Agreement unless the parties otherwise so
resolve prior to the Agreed Date. In the event any Surplus Land is
to be sold Moran must surrender the Lease in respect of that land
for a consideration of $1.
Moran must not take any steps to sell any Surplus Land without the
consent of the Trustee.
If an agreement is reached between Moran and the Trustee in
accordance with clause 15.6.1 above, Moran may determine and carry
out at its own cost and expense any work required to make the
Surplus Land ready for sale and the Trustee will use reasonable
endeavours to facilitate the work to be carried out, the
preparation of such land for sale and the land sales process
provided that all costs and expenses of the Trustee in so doing
are paid for by Moran.
<PAGE> 60
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In the event that part only of a parcel of Vacant Land is agreed
to be sold, then the amount of the Agreed Discounted Value, Cost
and Trustee Profit Component will be adjusted on a reasonable
basis as agreed by the Trustee and Moran. In the case of any
dispute, the matter will be referred to a person nominated by the
President of the Australian Institute of Valuers and Land
Economists whose determination shall be final.
If the Trustee and Moran determine Vacant Land to be sold before
the Agreed Date, that land may be sold pursuant to this clause at
any time from the date of the determination but only if completion
of the sale occurs within 30 months following the Completion Date.
If the Trustee and Moran determine Vacant Land to be sold before
the Agreed Date, and that land is not sold pursuant to clause
15.6.5 then the Trustee and Moran must negotiate in good faith to
reach agreement to permit the land to be sold so that completion
of the sale can occur more than 30 months following the Completion
Date.
MORAN DMFS
TRUSTEE MUST DISCHARGE
From the date of termination of the Lease the Trustee must
discharge at its own cost or procure the discharge at the cost of
another person all of the obligations of Moran pursuant to Moran's
DMFs.
The Trustee has no obligation pursuant to this clause if the
Covenantor or any entity controlled, directly or indirectly, by
the Covenantor becomes the beneficial owner of the Properties.
MORAN TO DIRECT
On termination of the Lease Moran must give notice to each counter
party to the Moran's DMFs directing the person to pay all money
owing or payable to Moran pursuant to the Moran's DMFs to the
Trustee or its nominee.
PAYMENTS PURSUANT TO MORAN'S DMFS
Any amount payable as a service or similar fee that is paid on a
periodic basis pursuant to a Moran's DMF will for any period up to
the date of termination of the Lease remain the property of Moran
and any such amount payable in respect of any period after the
date of termination of the Lease will be the property of the
Trustee or its nominee.
Any amount payable pursuant to Moran's DMFs otherwise than on a
periodic basis must be apportioned on the termination of the Lease
on the following basis:
Moran will be entitled to an amount calculated in
accordance with the
<PAGE> 61
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following formula:
B x C
-----
A
where:
A is the number of days between the date that services were first
provided pursuant to Moran's DMFs and
the date that the amount became due for payment;
B is the number of days between the date that services were
first provided pursuant to Moran's DMFs and
the date of termination of the Lease; and
C is the amount payable pursuant to Moran's
DMFs otherwise than on a periodic basis; and
the Trustee or its nominee will be entitled to the balance.
THE TRUSTEE MAY COLLECT
Following termination of the Lease the Trustee may as agent of
Moran collect all money owing or payable to Moran pursuant to the
Moran's DMFs and for that purpose the Trustee is authorised to
demand, sue for and enforce payment of and receive and give
receipts for all or any amounts payable pursuant to the Moran's
DMFs as effectively as Moran could itself do.
The cost of collecting any money pursuant to clause 16.4.1 must be
borne by Moran and the Trustee in proportion to the amount to
which each is entitled.
If either the Trustee or Moran receive money pursuant to a Moran's
DMF they must ensure that it is accounted for in accordance with
clause 16.3.
OBLIGATIONS OF THE TRUSTEE
TRUSTEE MUST ASSUME OBLIGATIONS
Omega must cause the Trustee to enter this agreement by entering
into the Assumption Agreement. Moran requests the Trustee to enter
into the Assumption Agreement.
<PAGE> 62
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NO OBLIGATION TO ACQUIRE
Nothing in this agreement requires Omega, Dilava, Rocla or any of
the Principal Trustees to acquire the properties or any units in
the Trust and any decision to do so will be at their absolute
discretion.
SECURITY DEPOSIT
On the execution of this agreement Moran must pay to Omega or as
it directs the sum of $500,000 as a security deposit. Omega
acknowledges the receipt of $50,000 of such sum and the balance of
$450,000 must be paid to Omega or as it directs on the Completion
Date by bank cheque. Omega must refund the amount of $500,000 on
the date that Moran is required to make its final payment to FAI
pursuant to the Procurement Agreement but not before the business
day preceding the second anniversary of the Completion Date.
MORAN NOT TO HARM TRUSTEE
Where Moran is authorised to demand, sue for or enforce payment of
any amount pursuant to this agreement as agent of the Trustee
Moran must not do or permit any thing to be done that may harm the
business reputation of the Trustee having regard to the business
of the Trustee from time to time when exercising any such right.
INDEMNITY FROM MORAN
CONSIDERATION TO MORAN
Moran acknowledges that:
Omega, Dilava, Rocla and the Principal Trustees enter into
this agreement at Moran's request and subject to Moran
giving this indemnity and that Moran has received valuable
consideration; and
the Trustee will enter into the Assumption Agreement at the
Covenantor's request and on the basis that the Covenantor
has given this indemnity and that the Covenantor has
received valuable consideration;
INDEMNITY
Moran unconditionally and irrevocably indemnifies the Indemnified
Parties against all losses, damages, costs, charges, liabilities
and expenses which any Indemnified Party may at any time suffer or
incur in relation to:
the incorporation or establishment of Rocla, PHF 1, PHF 2
and the Principal Trusts;
Tanoa or Mindra acting as trustee of the Principal
Healthcare Finance Unit Trust No 1 and the Principal
Healthcare Finance Unit Trust No 3
<PAGE> 63
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respectively;
their administration including management fees, filing
fees, accounting and taxation services, audit, legal fees,
trustee fees, fees of any director or officer,
accommodation;
the acquisition of units in the Trust or in connection with
such acquisition;
the fees and expenses of professional advisors retained by
any Indemnified Party relating directly or indirectly to:
the negotiation, preparation and execution of
this agreement, the RSA and all documents arising
under, relating to, referred to, contemplated by
or incidental to them; and
the formulation of the structure pursuant to
which the Principal Trusts were established;
the fees and expenses (including establishment and facility
fees and legal costs) of ABN AMRO Australia Limited in
connection with the provision of bank accepted bills
pursuant to the RSA;
any amount payable to Premier Care (Holdings) Pty Limited
pursuant to clause 7 of the RSA [Post Completion
adjustments] or clause 3.4 of the RSA [Asset Sale
Adjustment];
any act, matter or thing done or omitted to be done in
connection with the conduct of the business of the Trustee
or its assets prior to the Completion Date; and
any Tax assessed, payable or paid by any Indemnified Party:
in connection with this agreement (including any
amount received by an Indemnified Party pursuant
to this agreement the intention being that to the
extent that any amount paid to or receivable by
an Indemnified Party pursuant to this agreement
(FIRST AMOUNT) is itself subject to Tax Moran
unconditionally and irrevocably indemnifies the
Indemnified Party against that Tax so that the
net amount received by the Indemnified Party
after the payment of Tax is the first amount),
any Transaction Document, the RSA and any
document incidental to them;
in connection with the issue of any units in the
Trust pursuant to the RSA;
<PAGE> 64
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in connection with the conduct of the affairs of
the Trustee or the Trust up to the Completion
Date;
that is attributable to this agreement, the use
of the Properties prior to the Completion Date or
the future use of the Properties by Moran;
because of the distribution of any income or
capital of the Trust or any other trust or
entity; and
being any Tax calculated in accordance with the
Tax Act in respect of the year of income in which
the Trustee Disposes of the Sale Assets or any
part of the Sale Assets and which relates
directly or indirectly (and for the avoidance of
doubt this will include any Tax calculated as
payable by any beneficiary of any trust as a
result of the inclusion in its assessable income
of any amount arising from the Disposal) to such
Disposal (and ignoring any deductions or
concessions available to the Trustee other than
those which relate directly to the Sale Assets)
LESS an amount equal to the amount of tax
calculated in accordance with the Tax Act in
respect of the year of income in which the
Trustee Disposes of the Sale Assets or any part
of the Sale Assets and which relates directly or
indirectly (and for the avoidance of doubt this
will include any Tax calculated as payable by any
beneficiary of any trust as a result of the
inclusion in its assessable income of any amount
arising from the Disposal) to such Disposal
assuming:
A the Trustee acquired the Sale Assets on
the date of this Agreement; and
B the acquisition cost of the Sale Assets
was $50 million or in the case of the
Disposal of a part of the Sale Assets
such proportion of $50 million as the
Trustee determines acting reasonably;
(and ignoring any deductions or concessions
available to the Trustee other than those which
relate directly to the Sale Assets);
in connection with any "Determination" or
"Consent" as defined in the deed constituting the
Trust or any document that amends the Trust which
has first been approved by Moran.
If the Sale Assets or any part of the Sale Assets (RELEVANT
PROPERTY) is conveyed to any person and by reason of the
Tax Act it is not a taxable event and would for the
purposes of the Tax Act be a "roll-over" as commonly known
the reference to the Trustee in clause 20.2.1(I)(vi) and
20.2.4(f) will be deemed to be a reference to that person
in respect of the relevant property and that person will be
deemed to be included in the definition of "Indemnified
Party" in respect of clause 20.2.1(i)(vi).
<PAGE> 65
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Words that have a defined meaning in the Tax Act have the same
meaning in this clause.
This indemnity does not extend to any loss, damage, cost, charge,
liability or expense which any Indemnified Party may at any time
suffer or incur in relation to:
any Tax assessed, payable or paid by any Indemnified Party
that is solely attributable to the Rent;
any matter in clause 20.2.1(c) in relation to Omega and
Dilava;
the payment by the Trustee of the amount paid by the
Trustee to redeem the units in the Trust held by the
Original Unit Holders up to $50 million plus the amount
repaid by Moran to the Trustee pursuant to clause 8.3
[Repayment of loans];
the acquisition or ownership of any asset by the
Indemnified Parties or the conduct of any business by the
Indemnified Parties other than the assets owned by them at
the Completion Date and the conduct of any business
conducted by them at the Completion Date;
any dividends, interest or other returns obtained by the
investment of cash by the Trustee after Completion;
any Tax payable by any party (other than the Trustee) on the
Disposal of any asset (other than by the Trustee); and
any Tax assessed, payable or paid:
because of a difference between the amount distributed by a
trustee to a beneficiary of a trust under the terms of the
relevant trust deed and the share of income of the relevant
trust for taxation purposes except for the Trustee's DMFs,
ALUs or in connection with the sale of Surplus Land;
by any Indemnified Party that is attributable to tax
depreciation and capital expenditure allowance claims in
respect to plant, equipment, land and buildings and other
taxation deductions which involve a claim for the cost of
expenditure on items of plant, equipment, land or buildings
except in the event of a Disposal of any one or more of
those items; or
<PAGE> 66
-26-
on any difference arising between any amount recognised as
income pursuant to clauses 9, 10, 11 and 13 by the Trustee
and the amount paid as consideration to Moran pursuant to
clauses 9.5.1, 10.5.1 11.5.1 and 13 respectively
on any amounts paid to the Trustee under clause 15.5 in
respect of Surplus Land by way of loan which are not repaid
by the Trustee to Moran.
PAYMENT OF MONEY BY THE COVENANTOR
Moran must pay money owing pursuant to this clause in immediately
available funds without deduction on demand.
Simultaneously with the execution of this agreement Moran must pay
to Omega or as Omega directs Omega's estimate of:
the stamp duty payable in respect of this agreement and the
Transaction Documents; and
all money that will be payable pursuant to this clause
which has been incurred up to the execution of this
agreement
and must on the Completion Date pay to Omega or as Omega directs
Omega's estimate of all money that will be payable pursuant to
this clause which has been incurred from the date of this
agreement to the Completion Date.
PAYMENT DIRECT TO THIRD PARTIES
In the event the Trustee incurs a liability to a third party in
respect of which Moran would be liable to indemnify the Trustee
pursuant to clause 20.2.1 and requires Moran to discharge the
liability to the third party Moran must pay the amount to the
third party and to the extent that there is any shortfall Moran
must pay the amount of the shortfall to the Trustee.
SET OFF
To the extent that an Indemnified Party may or would have a claim
against Moran pursuant to any provision of this agreement the
amount of such claim may be set off by the Indemnified Party
against any amount that it would otherwise be liable to pay to
Moran pursuant to this agreement.
To the extent that an Indemnified Party (FIRST PARTY) may or would
have a claim against Moran pursuant to any provision of this
agreement Moran irrevocably directs each other Indemnified Party
to pay in aggregate to the first party any amount that it would
otherwise be liable to pay to Moran
<PAGE> 67
-27-
pursuant to this agreement to the extent of the claim as a full
and complete discharge of the obligation of the Indemnified Party
to Moran to the extent of the payment made by that party to Moran.
GUARANTEE AND INDEMNITY FROM THE COVENANTOR
CONSIDERATION TO THE COVENANTOR
Moran enters into this agreement as the trustee of the Moran
Trust. The Covenantor is the ultimate holding company of Moran and
the ultimate beneficiary of the Moran Trust and the Covenantor
acknowledges that the Trustee will enter into the Assumption
Agreement at the Covenantor's request and on the basis that the
Covenantor has given this guarantee and indemnity and that the
Covenantor has received valuable consideration.
GUARANTEE FROM THE COVENANTOR
The Covenantor unconditionally and irrevocably guarantees the
punctual performance of all of Moran's obligations under this
agreement. The Covenantor must immediately upon demand perform any
obligation owed by Moran to an Indemnified Party and not performed
by Moran when required or provided for under this agreement.
The Covenantor's obligations under this agreement:
are principal obligations and not ancillary or collateral
to any other obligation; and
may be enforced against the Covenantor without the
Indemnified Parties being required to exhaust any remedy
they may have against Moran or to enforce any security they
may hold with respect to Moran's obligations.
INDEMNITY
The Covenantor unconditionally and irrevocably indemnifies the
Indemnified Parties against all losses, damages, costs, charges,
liabilities and expenses which the Trustee may at any time suffer
or incur because:
(a) an obligation of Moran expressed in this agreement
is void, voidable or wholly or partially
unenforceable;
(b) any Indemnified Party has to disgorge any money
paid to them on Moran's account under this
agreement; or
(c) Moran fails to perform an obligation under this
agreement.
<PAGE> 68
-28-
PAYMENT OF MONEY BY THE COVENANTOR
The Covenantor must pay money owing under this clause in
immediately available funds without deduction.
ACKNOWLEDGMENTS BY THE COVENANTOR
The liability of the Covenantor is absolute and unconditional and
is not affected by any act, omission, matter or thing which, but
for this provision might operate to release or otherwise exonerate
it from any of its obligations including, without limitation, any
one or more of the following (whether occurring with or without
the consent of any person):
(a) any Indemnified Party granting time or
indulgence to Moran, the Covenantor or another
person;
(b) any Indemnified Party compounding or compromising
with or wholly or partially releasing Moran, the
Covenantor or another person;
(c) laches, acquiescence, delay, acts, omissions or
mistakes by any Indemnified Party;
(d) any Indemnified Party taking, varying, wholly or
partially discharging or otherwise dealing with
or losing or impairing any security for Moran's
or the Covenantor's obligations under this
agreement or a security of that kind being or
becoming void, voidable or unenforceable;
(e) a person who is intended to assume liability as a
guarantor under this agreement not doing so
effectively or being discharged;
(f) a novation, assignment, termination or variation
of this agreement;
(g) the insolvency or deregistration of Moran or the
Covenantor; or
(h) anything else which might have a similar effect
at law or in equity to any of those actions or
events.
OBAN NURSING HOME
Moran acknowledges that nothing known to the Trustee relating to
Oban Nursing Home affects the obligation of Moran to comply
with the Lease relating to works to be carried out by Moran in
respect of or in connection with Oban Nursing Home.
TERMINATION OF CERTAIN PROVISIONS
<PAGE> 69
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The obligations of the Trustee and Moran pursuant to the
provisions of clauses 7.3, 8.1.2, 9 (other than clauses 9.5.6 and
9.5.8), 10, 11, 13, 14, 15 (other than clause 15.5) will cease on
the date of termination of the Lease for any reason.
DISPUTE RESOLUTION
RESOLUTION BY CHARTERED ACCOUNTANT
The parties agree that any dispute between them in relation to the
amounts payable pursuant to this agreement will be resolved by a
chartered accountant of not less than ten years' standing
appointed by agreement between them or, failing agreement, by the
President for the time being of The Institute of Chartered
Accountants in Australia.
CHARTERED ACCOUNTANT TO ACT AS AN EXPERT
The person appointed pursuant to clause 24.1 will act as an expert
not an arbitrator and that person's decision will be final and
binding on the parties.
COSTS
The costs of resolution of the dispute in accordance with this
clause will be borne in accordance with the directions of the
person resolving the dispute.
TANOA AND MINDRA
Moran and the Covenantor acknowledge that Tanoa enters into this
Agreement as trustee of the Principal Healthcare Finance Unit
Trust No.1 and Mindra enters into this Agreement as trustee of the
Principal Healthcare Finance Unit Trust No.3 and that the
obligations undertaken by Tanoa and Mindra pursuant to this
agreement are in their capacity as such trustees and will have no
obligation to Moran or the Covenantor in any other capacity.
WARRANTIES
Each of the parties represent and warrant one unto the other that:
it has been duly authorised and has the power and authority
to enter into and perform its obligations under this
agreement and to carry out the transactions contemplated by
this agreement; and
the transaction contemplated by this agreement will not
violate its constituent documents or any other document or
agreement or any law or judgment binding on it; and
<PAGE> 70
-30-
its obligations under this agreement are valid and binding
and enforceable against it in accordance with its terms.
CONFIDENTIALITY AND ANNOUNCEMENTS
CONFIDENTIALITY
Each party agrees to keep as confidential information the terms of
this agreement and the contents of all negotiations leading to its
preparation, and will not disclose or discuss any of that
information without the prior written approval of the other party,
except:
as specifically contemplated by this agreement;
to the extent required by law;
to the extent required by the requirements of a stock
exchange on which the party's shares (or that of its
holding company) are listed;
to the extent required by that party's financiers or
intended financiers in relation to the provision of finance
for completion of the transactions contemplated by this
agreement; or
to the extent required to instruct the party's professional
advisers in relation to the preparation and completion of
this agreement.
ANNOUNCEMENTS
No announcements concerning this agreement or its subject matter
or any ancillary matter will be made before, on or after the date
of this agreement by any party except as required by law or a
stock exchange or by any other regulatory body without the prior
written approval of the parties (such approval not to be
unreasonably withheld or delayed).
NOTICES
MEANS OF GIVING NOTICES
Except if specified otherwise in a term of this agreement, a
notice may be given to the addressee by:
delivering it in writing to the street address of the addressee
which includes placing it in a postal receptacle provided for the
address or leaving it at the address with a person apparently of
or over the age of 16 years;
sending it by prepaid ordinary post (airmail if outside Australia)
to the street address of the addressee; or
sending it by facsimile to the facsimile number of the addressee.
<PAGE> 71
-31-
SPECIFIED ADDRESS FOR SERVICE
Until a party gives notice of a change, the street address and
facsimile number for that party is:
Moran and the Covenantor
street address: the address specified on page 1 of this agreement
facsimile number: 61 2 9247 1667
The Indemnified Parties
street address: the address of Omega specified on page 1 of this
agreement facsimile number: 1 734 996 0020
with a copy to:
Omega (UK) Limited 145 Cannon Street, London EC4N 5 BP, England
facsimile number: 44 171 929 3555
with a copy to:
Phillips Fox, 255 Elizabeth Street, Sydney, NSW 2000, Attention
Robert Tobias/Bill Chapman,
facsimile number: 61 2 9286 8191
TIME NOTICES ARE GIVEN
Except if a later time is specified in a term of this agreement
dealing with a notice, a notice is to be regarded as received by
the addressee:
if delivered in writing to the street address of the addressee, at
the time of delivery;
if it is sent by post to the street address of the addressee, on
the third (seventh if outside Australia) day after posting; or
if sent by facsimile to the facsimile number of the addressee, at
the time transmission is completed.
PROOF OF GIVING NOTICES BY FACSIMILE
Proof of the sending of a notice by facsimile and the time of
completion of transmission may be established by production of a
transmission report by the machine from which the facsimile was
sent which indicates that the facsimile was sent in its entirety
to the facsimile number of the addressee.
<PAGE> 72
-32-
COPIES OF NOTICES
If a party is required by any term of this agreement to give a
copy of a notice to a person the failure to give the copy of the
notice to the person may not be raised to rebut the effective
giving of the notice.
MISCELLANEOUS
PRESUMPTIONS OF INTERPRETATION
Unless the context otherwise requires a word which denotes:
the singular denotes the plural and vice versa;
any gender denotes the other genders; and
a person includes an individual, a body corporate, and a
government.
Unless the context otherwise requires a reference to:
any legislation includes any regulation or instrument made
under it and where amended, re-enacted or replaced means
that amended, reenacted or replacement legislation;
any other agreement or instrument where amended or replaced
means that agreement or instrument as amended or replaced;
and
a group of persons includes any one or more of them.
Where a word or phrase is given a defined meaning another part of
speech or other grammatical form in respect of that word or phrase
has a corresponding meaning.
HEADINGS AND TABLE OF CONTENTS
Headings and any table of contents must be ignored in the
interpretation of this agreement.
JOINT AND SEVERAL
An agreement warranty representation or obligation which binds or
benefits two or more persons under this agreement binds or
benefits those persons jointly and separately.
SUCCESSORS AND ASSIGNS
A person includes the trustee, executor, administrator, successor
in title and assign of that person. This clause must not be
construed as permitting a party to assign any right or obligation
under this agreement.
<PAGE> 73
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BUSINESS DAY
A business day is a day other than a Saturday or Sunday during
which banks are open for general banking business in New South
Wales.
REFERENCES TO AND CALCULATIONS OF TIME
Unless the context otherwise requires a reference to a time of day
means that time of day in the state or territory whose laws apply
in the construction of this agreement.
<PAGE> 74
-34-
LEGAL COSTS
Moran must pay the legal and other expenses relating directly or
indirectly to the negotiation, preparation and execution of this
agreement and all documents arising under, relating to, referred
to contemplated or incidental to it including its own and those of
each other party.
STAMP DUTY AND OTHER CHARGES
The Moran Trust must promptly pay within the time required to
avoid interest or penalty all stamp duty, fees and other taxes and
charges payable in connection with:
this agreement and any document incidental to it;
the registration and filing of this agreement and any
document incidental to it.
If a party other than the Moran Trust pays any stamp duty
on or relating to this agreement or a document incidental
to it, the Moran Trust must pay that amount to the other
party on demand.
AMENDMENT
This agreement may only be varied by the written agreement of the
parties.
APPROVALS AND CONSENT
Except when the contrary is stated in this agreement, a party may
give or withhold an approval or consent to be given under this
agreement in that party's absolute discretion and subject to those
conditions determined by the party.
A party is not obliged to give its reasons for giving or
withholding a consent or for giving a consent subject to
conditions.
ASSIGNMENT
Moran may only assign a right or obligation under this agreement
with the prior written consent of Omega and the Trustee which may
be given or withheld in their absolute discretion.
COUNTERPARTS
This agreement may be executed in a number of counterparts and if
so executed, the counterparts taken together constitute one
agreement.
<PAGE> 75
-35-
ENTIRE AGREEMENT
The Transaction Documents together with this agreement embody the
entire understanding and agreement between the parties as to the
subject matter of this agreement.
All previous negotiations, understandings, representations,
warranties, memoranda or commitments in relation to, or in any way
affecting, the subject matter of this agreement are merged in and
superseded by this agreement.
FURTHER ASSURANCE
Each party must promptly execute all documents and do all things
that another party from time to time reasonably requests to
effect, perfect or complete this agreement and all transactions
incidental to it.
SEVERANCE
Each of the agreements of the parties under this agreement is
severable from the others and the severance of one agreement does
not affect the other agreements.
GOVERNING LAW
This agreement is governed by and must be construed in accordance
with the laws of New South Wales.
JURISDICTION
Each party:
irrevocably and unconditionally submits to the
non-exclusive jurisdiction of the courts of New South Wales
and all courts which have jurisdiction to hear appeals from
those courts; and
waives any right to object to proceedings being brought in
those courts those courts for any reason.
<PAGE> 76
-36-
SCHEDULE A
(Vacant Land)
<PAGE> 77
-37-
SCHEDULE B
(Assumption Agreement)
<PAGE> 78
-38-
SCHEDULE C
(Motor Vehicles)
<PAGE> 79
-39-
SCHEDULE D
(Properties)
<TABLE>
<CAPTION>
PROPERTY INFORMATION
- ---------------------------------------------------------------------------------------------
<S> <C>
Hillside Retirement Village Postal Address: 3 Violet Town Road, Mount Hutton, NSW.
Lot/Portion: 100
Plan: 802320
Title Reference: Vol 8638 Folio 198
Berkeley Vale Retirement Postal Address: 8 Lorraine Avenue, Berkeley Vale, NSW.
Village Lot/Portion: 2
Plan: 711127
Title Reference: Vol 8624 Folio 130
Cherrywood Grove Nursing Postal Address: 152-170 Sieben Drive, Orange, NSW
Home & Retirement Village Lot/Portion: 27
Plan: 837884
Title Reference: 27/837884
Edgewood Park Retirement Postal Address: Beach Road, Batemans Bay, NSW
Village & Nursing Home Lot/Portion: 22
Plan: 777719
Title Reference: Vol 8643 Folio 95
Endeavour Retirement Postal Address: 79 Hawkesbury Road, Springwood, NSW
Village & Nursing Home Lot/Portion: 2
Plan: 532226
Title Reference: Vol 8641 Folio 117
Glenmere Retirement Postal Address: Wahroonga Road, Kanwal, Wyong, NSW
Village & Nursing Home Lot/Portion: 56
Plan: 804916
Title Reference: Vol 8644 Folio 38
Killarney Vale Retirement Postal Address: Daniel Close, Killarney Vale, Wyong, NSW
Village & Nursing Home Lot/Portion: 22; 3-12; 13
Plan: 794053; 732182; 732182
Title References: 22/794053; Vol 8641 Folio 95; 13/732182
Seaside Retirement Village Postal Address: Garden Street, Warriewood, NSW.
& Nursing Home Lot/Portion: 51
Plan: 22115
Title Reference: 51/SP22115
Terranora Valley Retirement Postal Address: Carramar Drive, Tweed Heads, NSW
Village & Nursing Home Lot/Portion: 10, 11
Plan: 736515
Title References: Vol 8644 Folio 37; 11/736515
Oban Nursing Home Postal Address: 23 Kangaroo Street, Raymond Terrace, NSW
Lots/Portions: 2-6 and 16; 17
Plans: 37509; 111509.
Title References: 2/37509, 3/37509, 4/37509, 5/37509, 6/37509,
16/37509; 17/111509
</TABLE>
<PAGE> 80
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SCHEDULE E
(Power of Attorney)
<PAGE> 81
-41-
EXECUTED AS AN AGREEMENT
Signed by the attorney of OMEGA
WORLDWIDE, INC. under power of attorney
in the presence of:
. . . . . . . . . . . .
Signature of attorney
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Signature of witness Office held
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Name of witness (print) Name of attorney (print)
Signed by the attorney of PHF NO.1 PTY
LIMITED under power of attorney in the
presence of:
. . . . . . . . . . . .
Signature of attorney
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Signature of witness Office held
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Name of witness (print) Name of attorney (print)
Signed by the attorney of PHF NO.2 PTY
LIMITED under power of attorney in the
presence of:
. . . . . . . . . . . .
Signature of attorney
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Signature of witness Office held
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Name of witness (print) Name of attorney (print)
<PAGE> 82
-42-
Signed by the attorney of TANOA PTY LIMITED
under power of attorney in the presence of:
. . . . . . . . . . . .
Signature of attorney
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Signature of witness Office held
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Name of witness (print) Name of attorney (print)
Signed by the attorney of MINDRA PTY LIMITED
under power of attorney in the presence of:
. . . . . . . . . . . .
Signature of attorney
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Signature of witness Office held
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Name of witness (print) Name of attorney (print)
Signed by the attorney of BEHEER - EN
BELEGGINGSMAATSCHAPPIJ DILAVA BV under
power of attorney in the presence of:
. . . . . . . . . . . .
Signature of attorney
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Signature of witness Office held
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Name of witness (print) Name of attorney (print)
Signed by the attorney of BEHEER - EN
BELEGGINGSMAATSCHAPPIJ ROCLA BV under
<PAGE> 83
-43-
power of attorney in the presence of:
. . . . . . . . . . . .
Signature of attorney
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Signature of witness Office held
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Name of witness (print) Name of attorney (print)
Signed by the attorney of MORAN HEALTH CARE
(AUSTRALIA) PTY LIMITED under
power of attorney in the presence of:
. . . . . . . . . . . .
Signature of attorney
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Signature of witness Office held
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Name of witness (print) Name of attorney (print)
Signed by the attorney of MORAN HEALTH CARE
GROUP PTY LIMITED under power of
attorney in the presence of:
. . . . . . . . . . . .
Signature of attorney
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Signature of witness Office held
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Name of witness (print) Name of attorney (print)
<PAGE> 84
-44-
RELATIONSHIP AGREEMENT
OMEGA WORLDWIDE, INC
PHF NO 1 PTY LIMITED
PHF NO 2 PTY LIMITED
TANOA PTY LIMITED
MINDRA PTY LIMITED
BEHEER - EN BELEGGINGSMAATSCHAPPIJ DILAVA BV
BEHEER - EN BELEGGINGSMAATSCHAPPIJ ROCLA BV
MORAN HEALTH CARE (AUSTRALIA) PTY LIMITED
MORAN HEALTH CARE GROUP PTY LIMITED
255 Elizabeth Street Sydney NSW 2000
Australia Tel +61 2 9286 8000 Fax +61 2
9283 4144 DX 107 SYDNEY Email:
[email protected] WWW site:
http://www.PhillipsFox.com.au
<PAGE> 85
CONTENTS
1. DEFINITIONS 3
2. LEASE 6
2.1 Entry into the Lease 6
2.2 Execution of the Lease 6
2.3 Completion and Execution 6
2.4 Liability runs from Completion 7
3. MORAN SECURITY DOCUMENTS AND MHCG LEASE GUARANTEE 7
3.1 Entry into Moran Security Documents 7
3.2 Execution of Moran Security Documents 7
3.3 MHCG Lease Guarantee 7
3.4 Execution of MHCG Lease Guarantee 7
4. RELINQUISHMENT OF LICENCES 7
4.1 Trustee to relinquish 7
4.2 Moran to maintain 8
4.3 Nursing Home Agreements 8
4.4 Commonwealth funding adjustments 8
5. ACQUISITION OF MOTOR VEHICLES 8
5.1 Sale and Purchase 8
5.2 Payment for Motor Vehicles 8
6. EMPLOYEES 9
6.1 Employment by Moran 9
6.2 Non-transferring Employees 9
6.3 Transferring Employees 9
6.4 Employee obligations 9
7. DEBTS AND CREDITORS 9
7.1 Moran to collect Debts as agent of the Trustee 9
7.2 Discharge of Creditors 10
7.3 Claims
8. LOANS TO MORAN 10
8.1 Making loans 10
8.2 Utilisation of loans 10
8.3 Repayment of loans 11
9. TRUSTEEOs DMFs 11
9.1 Moran must discharge 11
9.2 Collection of DMFs 11
9.3 Collection of DMFs after first anniversary 11
<PAGE> 86
-46-
9.4 Trustee to direct 11
9.5 Omega to pay consideration 11
10. ALU LEASES 13
10.1 Moran to market and sell ALUs 13
10.2 Trustee to give power of attorney 13
10.3 Performance of lessors obligations 13
10.4 Collection by Moran 13
10.5 Trustee to pay consideration 14
11. TRUST DISTRIBUTIONS 14
11.1 Introduction 14
11.2 Trustee may make distributions to the Original Unit Holders 14
11.3 Maximum distribution in year one 15
11.4 Maximum distribution in year two 15
11.5 Distributions not made or recovered 15
12. MORAN TO ACCOUNT 16
12.1 Accounting prior to first anniversary 16
12.2 Accounting after first anniversary 16
13. OTHER MONEY ATTRIBUTABLE TO MORAN 16
14. RSA WARRANTY CLAIMS 17
14.1 Indemnified Party to claim for breach of a warranty 17
14.2 Moran to fund claims 17
14.3 Set off under this agreement 17
15. SALE OF VACANT LAND 17
15.1 Basis of Arrangement 17
15.2 Obligations of Moran 18
15.3 Sale of Surplus Land within 12 Months 18
15.4 Sale of Surplus Land after 12 Months 18
15.5 Payment on the Agreed Date 19
15.6 Determination of Surplus Land 19
16. MORAN DMFs 20
16.1 Trustee must discharge 20
16.2 Moran to direct 20
16.3 Payments pursuant to MoranOs DMFs 20
16.4 The Trustee may collect 21
17. OBLIGATIONS OF THE TRUSTEE 21
17.1 Trustee must assume obligations 21
17.2 No obligation to acquire 21
18. SECURITY DEPOSIT 21
19. MORAN NOT TO HARM TRUSTEE 22
<PAGE> 87
-47-
20. INDEMNITY FROM MORAN 22
20.1 Consideration to Moran 22
20.2 Indemnity 22
20.3 Payment of money by the Covenantor 26
20.4 Payment direct to third parties 26
20.5 Set off 26
21. GUARANTEE AND INDEMNITY FROM THE COVENANTOR 26
21.1 Consideration to the Covenantor 26
21.2 Guarantee from the Covenantor 27
21.3 Indemnity 27
21.4 Payment of money by the Covenantor 27
21.5 Acknowledgments by the Covenantor 27
22. OBAN NURSING HOME 28
23. TERMINATION OF CERTAIN PROVISIONS 28
24. DISPUTE RESOLUTION 28
24.1 Resolution by chartered accountant 28
24.2 Chartered accountant to act as an expert 29
24.3 Costs 29
25. TANOA AND MINDRA 29
26. WARRANTIES 29
27. CONFIDENTIALITY AND ANNOUNCEMENTS 29
27.1 Confidentiality 29
27.2 Announcements 30
28. NOTICES 30
28.1 Means of giving notices 30
28.2 Specified address for service 30
28.3 Time notices are given 31
<PAGE> 88
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28.4 Proof of giving notices by facsimile 31
28.5 Copies of notices 31
29. MISCELLANEOUS 31
29.1 Presumptions of interpretation 31
29.2 Headings and table of contents 32
29.3 Joint and several 32
29.4 Successors and assigns 32
29.5 Business day 32
29.6 References to and calculations of time 32
29.7 Legal costs 33
29.8 Stamp duty and other charges 33
29.9 Amendment 33
29.10 Approvals and consent 33
29.11 Assignment 33
29.12 Counterparts 33
29.13 Entire agreement 34
29.14 Further assurance 34
29.15 Severance 34
29.16 Governing law 34
29.17 Jurisdiction 34
SCHEDULE A 35
SCHEDULE B 36
SCHEDULE C 37
SCHEDULE D 38
SCHEDULE E 39
<PAGE> 89
PROCUREMENT AGREEMENT
MORAN HEALTH CARE (AUSTRALIA) PTY LIMITED
FAI INSURANCES LIMITED
MORAN HEALTH CARE GROUP PTY LIMITED
DOUGLAS JOHN MORAN
GRETA RICHMOND MORAN
PETER GODFREY MORAN
SHANE MORAN
[PHILLIPS FOX LAWYERS LOGO]
255 Elizabeth Street Sydney NSW 2000 Australia
Tel +61 2 9286 8000 Fax +61 2 9283 4144 DX 107 SYDNEY
Email: [email protected] WWW site: http://www.Phillips
Fox.com.au
Ref: RWT 943463
<PAGE> 90
PROCUREMENT AGREEMENT
THIS AGREEMENT IS MADE ON 1998
PARTIES
MORAN HEALTH CARE (AUSTRALIA) PTY LIMITED ACN 082 466 457 of 13-15 Bridge
Street, Sydney, New South Wales, 2000 (MORANS)
FAI INSURANCES LIMITED ACN 004 304 545 of Level 8, 333 Kent Street, Sydney, New
South Wales, 2000 (FAI)
MORAN HEALTH CARE GROUP PTY LIMITED ACN 008 585 242 of 13-15 Bridge Street,
Sydney, New South Wales, 2000 (MHCG)
DOUGLAS JOHN MORAN, GRETA RICHMOND MORAN, PETER GODFREY MORAN and
SHANE MORAN each of 13-15 Bridge Street, Sydney, New South Wales, 2000
(collectively the MORAN DIRECTORS)
BACKGROUND
A. Morans wishes to lease the retirement villages and nursing homes
owned by the Assisted Living Unit Trust, a unit trust of which FAI
is (indirectly through its subsidiaries) the beneficiary and to
take over the employment of the employees of the Assisted Living
Unit Trust.
B. FAI is willing to enter into the RSA and to procure the existing
unit holders in the Assisted Living Unit Trust to request the
trustee of the Assisted Living Unit Trust to redeem their units
and issue new units to PHF No. 1 Pty Limited and Tanoa Pty
Limited.
C. Subject to PHF No. 1 Pty Limited and Tanoa Pty Limited becoming
the sole unit holders in the Assisted Living Unit Trust they have
agreed with Morans to procure the trustee of the Assisted Living
Unit Trust to lease the retirement villages and nursing homes
owned by the Assisted Living Unit Trust to Morans and Morans has
agreed, inter alia, to employ all of the employees of the Assisted
Living Unit Trust.
D. It is envisaged that FAI and the Unit Holder may receive
distributions of income and capital of the Assisted Living Unit
Trust.
E. This agreement provides for Morans in certain circumstances to
make payments which will ensure that FAI and the Unit Holder
receive certain amounts on certain dates. This agreement also
makes provision for FAI and the Unit Holder to refund amounts to
Morans in certain circumstances.
F. Pursuant to this agreement FAI and the Unit Holder are to receive
in total from Morans
<PAGE> 91
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and the Trustee an aggregate amount of $18,000,000, less only the
amounts contemplated by clauses 2.2.1(a) and 2.2.1(b) and this is
so irrespective of any change after Completion in the relationship
between Morans, the Trustee and the Subscribers.
G. In consideration of FAI agreeing to enter into the RSA and to
procure the redemption and issue of units referred to in paragraph
B, Morans agrees to enter into this agreement.
AGREEMENT
I. DEFINITIONS
In this agreement:
FEE means the amount calculated pursuant to clause 2.2.1.
DETERMINED AMOUNT means the amount determined pursuant to clause
2.2.1(a).
ESTIMATE means the amount notified by the Unit Holder in writing
pursuant to clause 2.2.15.
EXCESS DISTRIBUTION means the aggregate amount (which must not
exceed $12,000,000) by which all Trust Distributions made prior to
the first anniversary of the Completion Date exceed the First
Payment.
FIRST PAYMENT means $2,500,000 less the amount referred to in
clause 2.2.1(b).
GUARANTOR means MHCG and the Moran Directors.
INTERIM PAYMENT means $12,000,000 less the Estimate;
RSA means the Redemption and Subscription Agreement between
Premier Care Australia (Holdings) Pty Limited, the Trustee, FAI,
PHF No. 1 Pty Limited and Tanoa Pty Limited dated the same date as
this agreement.
TRUST DISTRIBUTION means each amount contemplated by clause
2.2.1(c)
Words or phrases given a defined meaning in the RSA have the same
meaning when used in this agreement unless otherwise defined in
this agreement.
<PAGE> 92
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II. RSA
A. FAI TO PROCURE EXECUTION OF RSA
FAI agrees to enter into the RSA and procure that the Unit Holder
and the Trustee enter into the RSA.
B. CONSIDERATION FOR FAI'S OBLIGATIONS
1. In consideration of the discharge of the obligations of FAI
pursuant to clause 2.1 Morans must pay to FAI $18,000,000 less:
a. an amount equivalent to the net sale proceeds (after
deducting all direct selling expenses including commissions
and legal expenses) of sales by the Trustee of any of the
Valued Assets (which FAI warrants have been made on an
arm's length basis in every case) excluding deferred
management fees payable under the Management Agreements,
during the period from 1 July 1997 to Completion, as
determined by the Auditor in accordance with the
requirements of clause 7.1(b) of the RSA; and
b. an amount equal to the redundancy costs certified in
accordance with clause 3.2, but only to a maximum of
$127,000; and
c. subject to subclause 2.2.2, any amount received by FAI
or the Unit Holder from the Trustee (which FAI or the Unit
Holder is properly and unconditionally entitled to retain
for its own benefit without any liability to refund or
compensate the Trustee or anyone else, and which is not
consideration for any services or payment of insurance
premiums or the like to FAI) or which is subject to an
irrevocable instruction to the Trustee given by FAI and the
Unit Holder to pay an amount due to FAI or the Unit Holder
by the Trustee to Morans as contemplated by clause 2.2.9
after the Completion Date which is neither an amount that
the Trustee is required to pay to the Unit Holder pursuant
to the RSA nor an amount received by FAI or the Unit Holder
prior to Completion.
2. The aggregate amount to be deducted pursuant to clause 2.2.1(c)
must not exceed:
a. $14,500,000 less the sum of the amounts contemplated by
clauses 2.2.1(a) and 2.2.1(b) in the period between the
Completion Date and the first anniversary of the Completion
Date; nor
b. $3,500,000 in the period between the first anniversary of
the Completion Date and the second anniversary of the
Completion Date.
3. The Interim Payment must be paid by Morans to FAI on Completion on
account of the Fee by delivery to FAI of unindorsed Bank accepted
Bills, with an aggregate face value equal to the Interim Payment,
drawn in favour of FAI or its nominees (as notified to
<PAGE> 93
- -4-
Morans prior to the execution of this agreement) and payable in
Sydney on the Business Day (date fixed) immediately preceding the
first anniversary of the Completion Date. To the extent that the
Interim Payment constitutes, by virtue of clause 2.2.1(c), an
overpayment, Morans agrees that it will rely solely on the
succeeding clauses of this clause 2 for reimbursement.
4. Subject to clauses 2.2.7 and 2.2.12 Morans must pay FAI the
balance of the Fee by the following instalments:
(a) The First Payment on the Business Day immediately preceding
the first anniversary of the Completion Date; and
(b) $3,500,000 on the Business Day immediately preceding the
second anniversary of the Completion Date.
5. If the Estimate is greater than the Determined Amount FAI must pay
to Morans an amount equal to the difference. If the Estimate is
less than the Determined Amount Morans must pay to FAI an amount
equal to the difference.
6. All payments required to be made pursuant to clause 2.2.5 must be
made within 25 Business Days of receipt of the documents required
to be delivered pursuant to clause 7.5 of the RSA by unindorsed
Bank cheque and, if any amount is disputed, the amount due must be
paid within 5 Business Days of the resolution of the dispute.
7. If FAI or the Unit Holder in aggregate receive (in cleared funds)
any Trust Distributions on or before the Business Day immediately
preceding the first anniversary of the Completion Date the
aggregate amount of the Trust Distributions up to the amount of
the First Payment will be deducted from the amount that Morans is
required to pay to FAI pursuant to clause 2.2.4(a).
8. To the extent that FAI or the Unit Holder in aggregate receive or
are entitled to receive any Excess Distribution on or before the
Business Day immediately preceding the first anniversary of the
Completion Date FAI must pay to Morans an amount equal to the
Excess Distribution.
9. On the Completion Date FAI and the Unit Holder must deliver to the
Trustee an irrevocable instruction in the form set out in Schedule
A.
10. Morans agrees that it accepts the irrevocable instruction
given to the Trustee pursuant to clause 2.2.9 as a full and
complete discharge of the obligations of FAI to pay Morans the
amount to which the instruction relates and Morans irrevocably
releases FAI from its obligations pursuant to clause 2.2.8 to the
extent of any amount to which the irrevocable instruction relates
except to the extent that, notwithstanding the instruction, the
amount is paid by the Trustee to FAI or the Unit Holder (and
received in cleared funds).
11. 7 days before the first anniversary of the Completion Date
Morans must cause the Trustee to notify FAI of the aggregate
amount of the Trust Distributions which will be and will have been
made on or before the Business Day immediately preceding the first
<PAGE> 94
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anniversary of the Completion Date specifying with reasonable
particularity the nature of those distributions so as to enable
FAI to return correctly the distributions in its tax return, and
the amount it considers is payable by FAI pursuant to clause
2.2.8.
12. To the extent that FAI or the Unit Holder receives (in cleared
funds) any Trust Distribution after the Business Day immediately
preceding the first anniversary of the Completion Date and on or
before the Business Day immediately preceding the second
anniversary of the Completion Date the amount will be deducted
from the amount that Morans is required to pay to FAI pursuant to
clause 2.2.4(b).
13. 7 days before the second anniversary of the Completion Date
Morans must cause the Trustee to notify FAI of the aggregate
amount of the Trust Distributions which will be and will have been
made after the Business Day immediately preceding the first
anniversary of the Completion Date and on or before the Business
Day immediately preceding the second anniversary of the Completion
Date specifying with reasonable particularity the nature of those
distributions so as to enable FAI to return correctly the
distributions in its tax return.
14. Despite clause 2.2.1(c) no amount contemplated by that clause will
be deducted from the amount of $18,000,000 referred to in clause
2.2.1 unless in respect of the relevant amount FAI and the Unit
Holder have received a letter from Blake Dawson Waldron in the
form set out in Schedule B in respect of that amount.
15. FAI represents that before execution of this agreement the Unit
Holder notified Morans in writing of its estimate (made in good
faith) of the amount contemplated by paragraph (a) of clause 2.2.1
as being required to be deducted from the amount of $18,000,000,
and such notification was accompanied by a detailed written
statement reflecting with reasonable particularity the basis of
calculation of the estimate.
16. If:
a. at any time the Trustee makes a claim or demand against FAI
or the Unit Holder for the recovery of any Trust
Distribution or any part of it on the grounds that it was
made by mistake (whether of fact or law) or for any other
reason; and
b. FAI and the Unit Holder agree to, or are compelled to,
repay such Trust Distribution or any part of it to the
Trustee;
Morans must pay to FAI an amount equal to the amount so agreed or
which they are compelled to pay on the day on which payment is
made by FAI and the Unit Holder to the Trustee.
<PAGE> 95
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III. REDUNDANCY COSTS
A. Morans will use reasonable endeavours to minimise staff
redundancies and redundancy costs of the former ALUT employees
whose employment it takes over as contemplated by Recital A in the
period of three months from the Completion Date.
B. Within five Business Days of the expiry of the three month period
referred to in subclause 3.1, Morans must submit to FAI a
statement particularising each redundancy and the redundancy costs
so incurred. The statement must be certified as being correct by
two directors of Morans.
C. FAI acknowledges and agrees that the maximum amount of redundancy
costs referred to in clause 2.2.1(b) does not include any
redundancy costs payable to or in respect of the employment of
Ross Breadman, Stephen Rymer or Janet Hook, whose employment will
be terminated no later than the time of Completion.
IV. GUARANTEE FROM GUARANTOR
A. MHCG is the holding company of Morans. The Moran Directors are
directors of MHCG. The Guarantor acknowledges that FAI is entering
into this agreement in consideration, among other things, of the
Guarantor agreeing to guarantee the obligations of Morans in
accordance with the succeeding subclauses of this clause.
B. The Guarantor unconditionally and irrevocably guarantees the due
and punctual performance of all of Morans obligations under this
agreement. The Guarantor will immediately on demand perform any
obligation owed by Morans to FAI and not performed by Morans when
required or provided for under this agreement.
C. The Guarantor's obligation under the guarantee in subclause 4.2:
a. is a principal obligation and is not ancillary or
collateral to any other obligation; and
b. may be enforced against the Guarantor without FAI being
required to exhaust any remedy it may have against Morans.
D. The liability of the Guarantor pursuant to the guarantee in
subclause 4.2 will not be affected by any act, omission, matter or
thing which, but for this provision might operate to release or
otherwise exonerate it from any of its obligations including any
one or more of the following (whether occurring with or without
the consent of any person):
a. FAI granting time or other indulgence to Morans or the
Guarantor;
b. laches, acquiescence, delay, act or omission by FAI;
c. the insolvency or deregistration of Morans; or
d. anything else which might have a similar effect at law or
in equity to any of those
<PAGE> 96
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things.
4.5 The guarantee in this clause 4 is binding on the persons
comprising the Guarantor severally and on every two or more of
them jointly and if not executed or otherwise binding on any one
or more of them named in this agreement will nevertheless be fully
binding on the others of them.
V. COMPLETION
A. COMPLETION TIME
1. On the Completion Date and simultaneously with completion of the
RSA, Morans must deliver the Bank accepted Bills in accordance
with subclause 2.2.3.
2. Completion of this agreement will not be regarded as having
occurred until the RSA is considered to be completed in accordance
with subclause 5.5 of the RSA.
VI. USE OF "PREMIER" NAME
A. MHCG AND MORANS NOT TO USE NAME
MHCG and Morans agree that they will not, and will procure that
each person or body corporate who is an associate of either of
them will not, use directly or indirectly, the name "Premier" or
any word visually or orally similar to that word in connection
with their activities in Australia or New Zealand (or both).
B. MEANING OF ASSOCIATE
In this clause a reference to an associate, where used to indicate
a relationship with any relevant person or body corporate means:
(i) any body corporate of which the relevant person or body
corporate beneficially owns, directly or indirectly, voting
securities carrying more than 50% of the voting rights
attached to all voting securities of the body corporate for
the time being outstanding;
(ii) any body corporate of which the relevant person, if a
natural person, is an officer or director;
(iii) any partner of the relevant person or body corporate;
(iv) any trust or estate in which the relevant person or body
corporate has a substantial beneficial interest or as to
which the relevant person or body corporate serves as
trustee or in a similar capacity or as a director of the
trustee;
(v) any relative (by consanguinity, marriage or adoption) of
the relevant person, if a natural person, including that
person's spouse (including a de facto
<PAGE> 97
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spouse) and any relative of that person's spouse (including
a de facto spouse) who could not reasonably be regarded as
being at arm's length in respect of any relevant dealing or
transaction;
(vi) if the relevant person is a body corporate, any parent
company of that body corporate and any other subsidiary of
that parent company; or
(vii) a person in concert with whom the relevant person is
acting, or proposes to act, pursuant to a formal or
informal contract, arrangement or understanding,
irrespective of whether or not it is enforceable.
VII. DISPUTE RESOLUTION
In the event of a dispute between the parties as to any amount
referred to in clause 2, that dispute must be resolved in
accordance with the procedure set out in clause 10 of the RSA.
VIII. NOTICES
A. FORM OF NOTICE
A notice:
a. must be in the English language; and
b. may be given on behalf of a person by a solicitor, director
or company secretary of the person.
B. MEANS OF GIVING NOTICES
A notice may be given to the addressee by:
a. delivering it in writing to the street address of the
addressee which includes placing it in a postal receptacle
provided for the address or leaving it at the address with
a person apparently of or over the age of 16 years;
b. sending it by prepaid ordinary post (airmail if outside
Australia) to the street address of the addressee; or
c. sending it by facsimile to the facsimile number of the
addressee.
<PAGE> 98
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C. SPECIFIED ADDRESS FOR SERVICE
Until a party gives notice of a change, the street address and
facsimile number for that party is:
Morans, MHCG and Moran Directors
street address: 13-15 Bridge Street, Sydney, New South Wales, 2000
facsimile number: 9247 1667
Att: John Hartigan
FAI
Street address: Level 8, 333 Kent Street, Sydney, New South
Wales, 2000
facsimile number: 9274 9900
Att: The Company Secretary
Unit Holder
street address: Level 8, 333 Kent Street, Sydney, New South
Wales, 2000
facsimile number: 9274 9900
Att: The Company Secretary
D. NOTIFICATION OF CHANGE OF ADDRESS
If the street address, telex number or facsimile number for a
party changes the party must give notice of the change to each
other party. Notification of the changed street address, telex
number or facsimile number takes effect at the later of the time
of giving the notice of change or the time specified in the
notice.
E. TIME NOTICES ARE GIVEN
Except if a later time is specified in a term of this agreement
dealing with a notice, a notice is to be regarded as given,
served, received and as having come to the attention of the
addressee:
a. if delivered in writing to the street address of the
addressee, at the time of delivery;
b. if it is sent by post to the street address of the
addressee, on the 3rd (7th if outside Australia) day after
posting; or
c. if sent by telex or facsimile to the telex or facsimile
number of the addressee at the time transmission is
completed.
F. PROOF OF GIVING NOTICES
Proof of the sending of a notice by telex or facsimile and the
time of completion of transmission may be established by
production of:
a. if the notice is sent by telex, evidence of the answerback
code of the addressee after transmission of the telex; or
<PAGE> 99
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b. if the notice is sent by facsimile, a transmission report
by the machine from which the facsimile was sent which
indicates that the facsimile was sent in its entirety to
the facsimile number of the addressee.
G. OPERATION OF STATUTORY PROVISIONS FOR NOTICES
This subclause does not exclude the operation of any statutory
provision relating to the serving of notices. However:
a. those provisions relating to service of notices by post
are not to apply to this agreement; and
b. any statutory provisions do not apply to the service of
notices under any other clause in this agreement which
expressly specifies the method of giving notices under that
other clause.
H. COPIES OF NOTICES
If a party is required by any term of this agreement to give a
copy of a notice to a person the failure to give the copy of the
notice to the person may not be raised to rebut the effective
giving of the notice.
IX. MISCELLANEOUS
A. PRESUMPTIONS OF INTERPRETATION
1. Unless the context otherwise requires a word which denotes:
a. the singular denotes the plural and vice versa;
b. any gender denotes the other genders; and
c. a person includes an individual, a body corporate, and a
government.
2. Unless the context otherwise requires a reference to:
a. any legislation includes any regulation or instrument made
under it and where amended, re-enacted or replaced means
that amended, re-enacted or replacement legislation;
b. any other agreement or instrument where amended or replaced
means that agreement or instrument as amended or replaced;
c. a clause, schedule, annexure or exhibit is a reference to a
clause of, annexure to, schedule to or exhibit to this
agreement;
d. a group of persons includes any one or more of them; and
<PAGE> 100
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e. a thing or amount is a reference to the whole and each
part of it.
3. Where a word or phrase is given a defined meaning another part of
speech or other grammatical form in respect of that word or phrase
has a corresponding meaning.
B. REFERENCES TO AGREEMENT
A reference to this agreement includes the recitals of and any
schedules, annexures and exhibits to this agreement and where
amended means this agreement as so amended.
C. HEADINGS AND TABLE OF CONTENTS
Headings and the table of contents must be ignored in the
interpretation of this agreement.
D. SUCCESSORS AND ASSIGNS
A person includes the trustee, executor, administrator, successor
in title and assign of that person. This subclause must not be
construed as permitting a party to assign any right or obligation
under this agreement.
E. BUSINESS DAY
A business day is a day other than Saturday during which Banks are
open for general banking business in New South Wales.
F. REFERENCES TO AND CALCULATIONS OF TIME
1. Unless the context otherwise requires a reference to a time of day
means that time of day in New South Wales.
2. Where a period of time is specified and dates from a given day or
the day of an act or event it must be calculated exclusive of that
day.
3. Unless the context otherwise requires, a term of this agreement
which has the effect of requiring anything to be done on or by a
date which is not a business day must be interpreted as if it
required it to be done on or by the next business day.
<PAGE> 101
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G. AMENDMENT
This agreement may only be varied by the written agreement of the
parties.
H. APPROVALS AND CONSENT
1. Except when the contrary is stated in this agreement, a party may
give or withhold an approval or consent to be given under this
agreement in that party's absolute discretion and subject to those
conditions determined by the party.
2. A party is not obliged to give its reasons for giving or
withholding a consent or for giving a consent subject to
conditions.
I0 ASSIGNMENT
A party may only assign a right or obligation under this agreement
with the prior written consent of all other parties.
J0 COUNTERPARTS
This agreement may be executed in a number of counterparts and if
so executed, the counterparts taken together constitute one
agreement.
K0 FURTHER ASSURANCE
Each party must promptly execute all documents and do all things
that another party from time to time reasonably requests to
effect, perfect or complete this agreement and all transactions
incidental to it.
L0 GOVERNING LAW AND JURISDICTION
1 This agreement is governed by and must be construed in accordance
with the laws of New South Wales.
2 Each party:
a0 irrevocably and unconditionally submits to the non-
exclusive jurisdiction of the courts of New South Wales and
all courts which have jurisdiction to hear appeals from
those courts; and
b0 waives any right to object to proceedings being brought in
those courts for any reason.
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M0 LEGAL COSTS
The parties must each pay their own legal and other expenses
relating directly or indirectly to the negotiation, preparation
and execution of this agreement and all documents incidental to
it.
N0 STAMP DUTY AND OTHER IMPOSTS
1 Morans agree to pay or cause to be paid all stamp duty, fines
and penalties (including any liability with respect to or
resulting from delay or omission to pay such duty), which may be
payable or determined to be payable in connection with the
execution, delivery, performance or enforcement of this agreement
or any other instrument created pursuant to or in connection with
or incidental to this agreement or in respect of any transaction
contemplated by this agreement or any such instrument.
2 Morans indemnify FAI in respect of all claims, demands, actions,
proceedings, costs, expenses and liabilities (including fines and
penalties) relating to all amounts for which FAI may be liable as
a consequence of any failure by Morans to comply with the
provisions of subclause 9.14.1.
O0 PAYMENTS
All payments required to be made by Morans or FAI pursuant to this
agreement must be made by unindorsed Bank cheque payable to the
person entitled to the payment and are payable on the Business Day
immediately preceding the first anniversary of the Completion Date
unless in either case it is specified to the contrary in this
agreement.
<PAGE> 103
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SCHEDULE A
(Irrevocable instruction)
To: Premier Care Australia Pty Limited
For valuable consideration, the receipt of which is acknowledged, you are
irrevocably instructed to act as our agent to hold any amount payable to us
which is a Trust Distribution the amount of which, when aggregated with all
other Trust Distributions, is in excess of the First Payment (as those
capitalised terms are defined in the Procurement Agreement so called between FAI
Insurances Limited, Moran Health Care (Australia) Pty Limited (MORANS), Moran
Health Care Group Pty Limited, Douglas John Moran, Greta Richmond Moran, Peter
Godfrey Moran and Shane Moran and dated the date of this instruction a copy of
which is attached to this letter) to a maximum of $12,000,000, and to pay that
amount to Morans in full satisfaction of your obligation to pay that amount to
us.
Dated June 1998
Signed by the attorney of FAI INSURANCES
LIMITED under power of attorney in the
presence of:
. . . . . . . . . . . .
Signature of attorney
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Signature of witness Office held
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Name of witness (print) Name of attorney (print)
Signed by the attorney of PREMIER CARE
AUSTRALIA (HOLDINGS) PTY LIMITED under power
of attorney in the presence of:
. . . . . . . . . . . .
Signature of attorney
. . . . . . . . . . . . . . . . . . . . . . . . . . .
Signature of witness Office held
. . . . . . . . . . . . . . . . . . . . . . . . . . .
Name of witness (print) Name of attorney (print)
<PAGE> 104
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SCHEDULE B
(BDW letter)
<PAGE> 105
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EXECUTED AS AN AGREEMENT
Signed by the attorney of MORAN HEALTH CARE
(AUSTRALIA) PTY LIMITED under power of attorney
in the presence of:
. . . . . . . . . . . .
Signature of attorney
. . . . . . . . . . . . . . . . . . . . . . .
Signature of witness Office held
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Name of witness (print) Name of attorney (print)
Signed by the attorney of FAI INSURANCES
LIMITED under power of attorney in the presence
of:
. . . . . . . . . . . .
Signature of attorney
. . . . . . . . . . . . . . . . . . . . . . .
Signature of witness Office held
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Name of witness (print) Name of attorney (print)
Signed by the attorney of MORAN HEALTH CARE
GROUP PTY LIMITED under power of attorney in
the presence of:
. . . . . . . . . . . .
Signature of attorney
. . . . . . . . . . . . . . . . . . . . . . . .
Signature of witness Office held
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Name of witness (print) Name of attorney (print)
Signed by the attorney of DOUGLAS JOHN MORAN
under power of attorney in the presence of:
<PAGE> 106
- -17-
. . . . . . . . . . . . . . . . . . . . . . .
Signature of witness Signature of attorney
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Name of witness (print) Name of attorney (print)
Signed by the attorney of GRETA RICHMOND
MORAN under power of attorney in the presence of:
. . . . . . . . . . . . . . . . . . . . . . .
Signature of witness Signature of attorney
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Name of witness (print) Name of attorney (print)
Signed by the attorney of PETER GODFREY MORAN
under power of attorney in the presence of:
. . . . . . . . . . . . . . . . . . . . . . . . . .
Signature of witness Signature of attorney
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Name of witness (print) Name of attorney (print)
Signed by the attorney of SHANE MORAN
under power of attorney in the presence of:
. . . . . . . . . . . . . . . . . . . . . . . .
Signature of witness Signature of attorney
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Name of witness (print) Name of attorney (print)
<PAGE> 107
8
CAPITAL CONTRIBUTION AGREEMENT
MORAN HEALTH CARE (AUSTRALIA) PTY LIMITED
MORAN HEALTH CARE GROUP PTY LIMITED
PREMIER CARE AUSTRALIA PTY LIMITED
[PHILLIPS FOX LAWYERS LOGO]
255 Elizabeth Street Sydney NSW 2000 Australia
Tel +61 2 9286 8000 Fax +61 2 9283 4144 DX 107 SYDNEY
<PAGE> 108
9
Email:[email protected] WWW site:
http://www.PhillipsFox.com.au
<PAGE> 109
1
CAPITAL CONTRIBUTION AGREEMENT
THIS AGREEMENT IS MADE ON 1998
PARTIES
MORAN HEALTH CARE (AUSTRALIA) PTY LIMITED ACN 082 466 457 of 13 - 15 Bridge
Street Sydney, New South Wales, Australia (MORAN)
MORAN HEALTH CARE GROUP PTY LIMITED ACN 008 585 242 of 13 - 15 Bridge Street
Sydney, New South Wales, Australia (COVENANTOR)
PREMIER CARE AUSTRALIA PTY LIMITED ACN 069 875 476 of Level 8, 333 Kent Street,
Sydney (TRUSTEE)
BACKGROUND
A Moran has agreed to lease the assets described as "Leased
Property" in the Lease from the Trustee.
B The Covenantor has requested the Trustee to enter into this
agreement.
C The Trustee has agreed to make certain capital contributions to
Moran on the terms and conditions contained in this agreement at
the request of the Covenantor.
AGREEMENT
I. DEFINITIONS
In this agreement:
COMPLETION DATE means the date of this agreement.
LEASE means the agreement titled "NSW Lease" between each of the
parties to this agreement and dated on or about the date of this
agreement.
II. TRUSTEE'S ADDITIONAL CAPITAL CONTRIBUTION
A. TERMS DEFINED IN THE LEASE
Words which have a defined meaning in the Lease have the same
meaning when used in this clause unless the same word is also
defined in this clause, in which case the definition in this
clause prevails.
B. MORAN MAY SERVE REQUEST NOTICE
<PAGE> 110
2
At any time and from time to time between 12 months after the
Completion Date and 24 months after the Completion Date Moran may
serve written notice (REQUEST NOTICE) on the Trustee (the date on
which the Request Notice is served being the REQUEST DATE)
requesting the Trustee to pay a sum of money to Moran or its
nominee (CAPEX CONTRIBUTION) as a contribution to the capital
expenditure obligations of Moran pursuant to the Lease as Moran
may specify in the Request Notice.
C. REQUIREMENTS OF REQUEST NOTICE
The Request Notice must:
a. specify the Capex Contribution requested;
b. specify the Property in respect of which the Capex
Contribution is requested;
c. include a valuation of the relevant Property from a valuer
approved by the Trustee; and
d. include a detailed calculation demonstrating how the
condition specified in clause 2.6 (CAPEX CONTRIBUTION
CONDITIONS) will be satisfied.
D. TRUSTEE TO CONSIDER REQUEST NOTICE
The Trustee must consider the Request Notice as soon as reasonably
practicable and must give written notice (COUNTER REQUEST NOTICE)
to Moran as soon as reasonably practicable (and in any event
within 28 days) as to whether it considers the Capex Contribution
Conditions have been satisfied and if not the reasons why and in
default of agreement between Moran and the Trustee the provisions
of Section 36 of the Lease will apply as if the same were
incorporated in this agreement.
E. CAPEX CONTRIBUTION DATE
If the Capex Contribution Conditions are satisfied the Capex
Contribution must be paid on the date (CAPEX CONTRIBUTION DATE)
specified by Trustee being no later than the later of 2 months
after the Request Date and one month after any determination under
clause 2.4 that the Capex Contribution Conditions have been
satisfied and on the Capex Contribution Date subject to the Capex
Contribution Conditions being satisfied at that time the Trustee
must pay the Capex Contribution to Moran or its nominee and the
Rent must be increased as provided for in clause 2.7.
F. CAPEX CONTRIBUTION CONDITIONS
The Capex Contribution Conditions are:
a. for the period of 26 weeks prior to the Request Date
(SATISFACTION PERIOD) and for the period from the Request
Date to the relevant Capex Contribution Date if the
relevant proportion of the Increased Rent as defined in
clause 2.7 (and any
<PAGE> 111
3
Increased Rent (defined below) which would have been
payable in the Satisfaction Period in respect of any other
Capex Contribution Conditions) had been payable as an
addition to the Rent payable in respect of the Lease and
any Supplemental Lease for the Satisfaction Period the
ratio of Cash Flow to Rent would not any time have been
below the relevant figure stated in Section 8.3 of the
Lease having regard to any Supplemental Lease;
b. each Capex Contribution must be a minimum of Two-Hundred
and Fifty Thousand Dollars ($250,000) and the maximum Capex
Contribution for each of the Leased Properties must not
exceed 95% of the valuation for the relevant Leased
Property referred to in Schedule 2 of the Lease less the
amount of the Initial Purchase Price allocated to the
relevant Property specified in Schedule 2 of the Lease but
in no circumstances will the total amount of all Capex
Contributions exceed $3 million;
c. no Event of Default shall have occurred in relation to the
Lease;
d. Moran and the Trustee enters into such documents as the
Trustee reasonably requires confirming the Increased Rent
(defined below) and revising the provisions of Part II of
Exhibit A of the Lease (or the corresponding provisions of
the Supplemental Lease) to increase the Purchase Price
allocated to the relevant Property by the amount of the
Capex Contribution for the relevant Property;
e. Moran pays to the Trustee a commitment fee of 1.0% of the
Capex Contribution which the Trustee may deduct from the
Capex Contribution;
f. the Trustee has obtained the consent (if required) of any
Superior Lessor or Facility Mortgagee (which it shall use
its reasonable endeavours to obtain); and
g. all of the above Capex Contribution Conditions remain
satisfied on the relevant Capex Contribution Date.
G. INCREASE IN RENT
Each time a Capex Contribution is paid by the Trustee to Moran,
the Rent shall be increased by an amount equal to 10.00% or if
higher the rate which is equal to 400 basis points above the rate
last quoted prior to the Capex Contribution Date for 10 year
Australian Government Bonds which will take effect from the Capex
Contribution Date (and the Rent so increased is referred to as the
INCREASED RENT).
<PAGE> 112
4
III. MISCELLANEOUS
A. PRESUMPTIONS OF INTERPRETATION
1. Unless the context otherwise requires a word which denotes:
a. the singular denotes the plural and vice versa;
b. any gender denotes the other genders; and
c. a person includes an individual, a body corporate, and a
government.
2. Unless the context otherwise requires a reference to:
a. any legislation includes any regulation or instrument made
under it and where amended, re-enacted or replaced means
that amended, re-enacted or replacement legislation;
b. any other agreement or instrument where amended or replaced
means that agreement or instrument as amended or replaced;
c. a group of persons includes any one or more of them; and
d. a thing or amount is a reference to the whole and each
part of it.
3. Where a word or phrase is given a defined meaning another part of
speech or other grammatical form in respect of that word or phrase
has a corresponding meaning.
B. HEADINGS AND TABLE OF CONTENTS
Headings and any table of contents must be ignored in the
interpretation of this agreement.
C. SUCCESSORS AND ASSIGNS
A person includes the trustee, executor, administrator, successor
in title and assign of that person. This clause must not be
construed as permitting a party to assign any right or obligation
under this agreement.
D. REFERENCES TO AND CALCULATIONS OF TIME
1. Unless the context otherwise requires a reference to a time of day
means that time of day in the state or territory whose laws apply
in the construction of this agreement.
2. For the purposes of determining the length of a period a
reference to:
a. a day means a period of time commencing at midnight and
ending 24 hours later; and
<PAGE> 113
5
b. a month means a calendar month which is a period commencing
at the beginning of a day of one of the 12 months of the
year and ending immediately before the beginning of the
corresponding day of the next month or, if there is no
corresponding day, ending at the expiration of that next
month.
3. Where a period of time is specified and dates from a given day or
the day of an act or
event it must be calculated exclusive of that day.
4. Unless the context otherwise requires, a term of this agreement
which has the effect of requiring anything to be done on or by a
date which is not a business day must be interpreted as if it
required it to be done on or by the next business day.
E. WHOLE AGREEMENT
This agreement and the documents referred to in it contain the
whole agreement between the parties relating to the subject matter
contemplated by this agreement and supersede all previous
agreements between the parties relating to these transactions.
F. NO RELIANCE ON OTHER MATTERS
Each of the parties acknowledges that in agreeing to enter into
this agreement it has not relied on any representation, warranty
or other assurance except those set out in this agreement.
G. LEGAL COSTS
The parties must each pay their own legal and other expenses
relating directly or indirectly to the negotiation, preparation
and execution of this agreement and all documents incidental to
it.
H. STAMP DUTY AND OTHER CHARGES
1. Moran must pay all stamp duty payable in connection with this
agreement and any document incidental to it.
2. If a party other than Moran pays any stamp duty on or relating to
this agreement or a document incidental to it, Moran must pay that
amount to the other party on demand.
I. AMENDMENT
This agreement may only be varied by the written agreement of the
parties.
<PAGE> 114
6
J. APPROVALS AND CONSENT
1. Except when the contrary is stated in this agreement, a party may
give or withhold an approval or consent to be given under this
agreement in that party's absolute discretion and subject to those
conditions determined by the party.
2. A party is not obliged to give its reasons for giving or
withholding a consent or for giving a consent subject to
conditions.
K. ASSIGNMENT
1. The rights or obligations under this agreement may not be assigned
or transferred by Moran without the written consent of the
Trustee.
L. COUNTERPARTS
This agreement may be executed in a number of counterparts and if
so executed, the counterparts taken together constitute one
agreement.
M. GOVERNING LAW
This agreement is governed by and must be construed in accordance
with the laws of New South Wales.
N. JURISDICTION
Each party:
a. irrevocably and unconditionally submits to the
non-exclusive jurisdiction of the courts of New South Wales
and all courts which have jurisdiction to hear appeals from
those courts; and
b. waives any right to object to proceedings being brought in
those courts for any reason.
<PAGE> 115
7
EXECUTED AS AN AGREEMENT
Signed by the attorney of MORAN HEALTH CARE
(AUSTRALIA) PTY LIMITED under power of
attorney in the presence of:
. . . . . . . . . . . .
Signature of attorney
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Signature of witness Office held
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Name of witness (print) Name of attorney (print)
Signed by the attorney of MORAN HEALTH CARE
GROUP PTY LIMITED under power of
attorney in the presence of:
. . . . . . . . . . . .
Signature of attorney
. . . . . . . . . . . . . . . . . . . . . . . . . . .
Signature of witness Office held
. . . . . . . . . . . . . . . . . . . . . . . . . . .
Name of witness (print) Name of attorney (print)
Signed by the attorney of PREMIER CARE
AUSTRALIA PTY LIMITED under power of
attorney in the presence of:
. . . . . . . . . . . .
Signature of attorney
. . . . . . . . . . . . . . . . . . . . . . . . . .
Signature of witness Office held
. . . . . . . . . . . . . . . . . . . . . . . . . .
Name of witness (print) Name of attorney (print)
<PAGE> 116
OMEGA HEALTHCARE
NSW LEASE
DRAFT: 1 July 1998
255 Elizabeth Street Sydney NSW 2000 Australia
Tel +61 2 9286 8000 Fax +61 2 9283 4144 DX 107 SYDNEY
Email: [email protected]
WWW site: http://www.PhillipsFox.com.au
Ref:VAC 940906
<PAGE> 117
PART 1 THE SUBJECT MATTER AND TERM OF THIS LEASE
1.1 LEASED PROPERTY AND TERM
The Lessor leases the Leased Property to the Lessee for the
Term at the Rent and otherwise on the terms and conditions set
out in this Lease.
PART 2 DEFINITIONS AND INTERPRETATION
2.1 DEFINITIONS
Words commencing with a capital letter shall have the meanings
given in the Dictionary.
2.2 INTERPRETATION
For all purposes of this Lease:
(a) words expressed in the singular include the plural and
vice versa;
(b) all accounting terms not otherwise defined in this
Lease have the meanings assigned to them in accordance
with Australian GAAP;
(c) any covenant in this Lease by the Lessee not to do an
act or thing shall be deemed to include an obligation
not to permit or suffer such act or thing to be done;
(d) reference to the requirement of any consent and/or
approval from the Lessor shall be deemed to include a
requirement for the consent and/or approval of any
Facility Mortgagee;
(e) all references in this Lease to any Statute or Act of
Parliament or Statutory Instrument shall include every
Statute or Act of Parliament or Statutory Instrument
now or in the future enacted and every instrument,
regulation and by-law and every order, notice or
direction and every licence, consent or permission made
or given under any of them and any reference to an Act
of Parliament shall include any amendment extension or
reenactment for the time being in force;
(f) covenants and powers implied by statute are excluded
from this Lease, unless any such covenant or power
cannot be excluded by force or statute or is expressly
incorporated in this Lease;
(g) definitions and interpretation shall apply except as
otherwise expressly provided or unless the context
otherwise requires.
<PAGE> 118
- -2-
PART 3 LESSEE'S FINANCIAL OBLIGATIONS
RENT
3.1 The Lessee covenants to pay the Rent to the Lessor during the
Term by direct debit to whichever bank account the Lessor
directs in advance in equal, consecutive monthly instalments
on the first day of each calendar month or to such other
persons, firms or corporations or in such other manner as the
Lessor from time to time may designate in a Notice as follows:
(a) If the Lessor directs the Lessee to pay any Rent to any
party other than the Lessor, the Lessee shall send to
the Lessor, simultaneously with such payment, a copy of
the transmittal letter or invoice and the cheque
whereby such payment is made or such other evidence of
payment as the Lessor may reasonably require. The first
monthly payment of Rent, in respect of the period
commencing on (and including) the date of this Lease,
shall be payable on the date of this Lease. Rent and
Additional Charges shall be prorated as to any partial
months at the beginning and end of the Term.
(b) The Rent for each Lease Year beginning with the Lease
Year commencing 1 July 2000 shall at the commencement
of each such Lease Year be increased by the greater of:
(i) such percentage as equals the percentage by
which the Consumer Price Index published on
the last published date before commencement of
that Lease Year exceeds the corresponding
Consumer Price Index published on the last
published date before commencement of the
immediately preceding Lease Year PROVIDED THAT
the increase in Rent attributable to an
increase in the Consumer Price Index in each
Lease Year shall not be less than 2% and no
more than 6% greater than the Rent payable in
the immediately preceding Lease Year; and
(ii)(I) 6% of the increase (if any) of
Turnover from the expiration of the Turnover
Period expiring before the commencement of the
Lease Year immediately preceding the Lease
Year for which the Rent is being reviewed to
the expiration of the Turnover Period expiring
immediately before the Lease Year for which
the Rent is being reviewed; and
(II) in the case of the Turnover Period for the
period from the date
<PAGE> 119
- -3-
of this Lease to 30 June 2000, 6% of the
increase (if any) of Turnover from the
expiration of the period of 12 months expiring
on the date immediately before the grant of
this Lease and the period from and including
the date of this Lease to and including 30
June 2000 multiplied by 365 and divided by the
number of days from and including the date of
this Lease to and including 30 June 2000.
(c) To result in an increase in Rent, the increase in
Turnover referred to in clause 3.1(b)(ii) must arise as
a result of a change in the Lessee's business carried
out at the Leased Property.
NO REDUCTION
3.2 No adjustment under this Part 3 shall reduce the Rent below
the Rent reserved for the Lease Year immediately preceding the
Lease Year for which such increase is being calculated and any
adjustments to Rent shall be upwards only.
ADDITIONAL CHARGES
3.3 In addition to the Rent, the Lessee will also pay when due all
Additional Charges.
LATE CHARGES
3.4 If the Lessee does not pay any instalment of Rent by the due
date (whether formally demanded or not) then, without
prejudice to any other right or remedy available to the
Lessor, the Lessee shall pay the Lessor on demand, as an
additional charge, interest at the Overdue Rate from the date
due to the date paid in full compounded monthly.
NET LEASE
3.5 The Rent shall be paid absolutely and unconditionally to the
Lessor, so that this Lease shall yield to the Lessor the full
amount of the instalments of Rent and Additional Charges (to
the extent the latter are owed to the Lessor) (subject only to
the Lessee's obligations to deduct withholding tax if properly
required to do so by law) throughout the Term, and subject to
any other provisions of this Lease which expressly provide for
adjustment or abatement of Rent or other charges. The
covenants to pay Rent and other amounts under this Lease are
independent covenants, and the Lessee shall have no right to
hold back, set off or fail to pay any such amounts for default
by the Lessor or any other reason whatsoever.
<PAGE> 120
- -4-
3.6 The Lessee hereby assumes the full and sole responsibility for
the condition, operation, repair, alteration, improvement,
replacement, maintenance, remediation and management of the
Leased Property. The Lessor shall not be responsible for any
loss or damage to any property of the Lessee or any subtenant,
licensee, concessionaire, or other user or occupant of any
part of the Leased Property. The Lessee shall pay all costs,
expenses, penalties, fines, claims, damages and charges
arising out of its use, occupancy and operation of the Leased
Property. The Lessor is not required to furnish any services
whatsoever to the Leased Property, or (unless otherwise
specifically and expressly agreed or provided in this Lease)
make any payment of any kind whatsoever.
LIMITATION ON COUNTERCLAIM
3.7 If the Lessor commences any proceedings for nonpayment of
Rent, the Lessee will not make any counterclaim or cross
complaint or reduction or set off or abatement or similar
pleading of any nature or description in such proceedings.
This shall not be construed as a waiver of the Lessee's rights
to assert such claims in a separate action brought by the
Lessee.
STAMP DUTY
3.8 The Lessee shall pay all stamp duty and registration fees
payable in connection with this Lease.
GROSSING UP
3.9 If at any time any applicable law requires the Lessor or the
Lessee to make any deduction or withholding in respect of
Taxes from any payment under this Lease to the Lessor, the
Lessee shall pay the Lessor, at the time that payment is due,
such additional amounts as are necessary to ensure that, after
the making of that deduction or withholding, the Lessor,
receives a net sum equal to the sum which it would have
received had no such deduction or withholding been made, and
the Lessee shall indemnify the Lessor, against any losses or
costs incurred by the Lessor, by reason of any failure of the
Lessee to make any such deduction or withholding. The Lessee
shall promptly deliver to the Lessor, copies of any receipts,
certificates or other proof evidencing the amounts (if any)
paid or payable in respect of any such deduction or
withholding.
PART 4 OUTGOINGS
PAYMENT OF OUTGOINGS
<PAGE> 121
- -5-
4.1 Subject to Part 12, the Lessee will pay, or cause to be paid,
all Outgoings before any fine, penalty, interest or cost for
nonpayment becomes due and payable, such payments to be made
directly to the relevant taxing authorities where feasible,
and will promptly, upon reasonable request, furnish to the
Lessor copies of official receipts or other proof evidencing
such payments. If any such Outgoings may be paid in
instalments (whether or not interest shall accrue on the
unpaid balance of such Outgoings), the Lessee may pay the same
(and any accrued interest on the unpaid balance of such
Outgoing) in instalments and in such event, shall pay such
instalments during the Term as the same respectively become
due and before fine, penalty, premium, further interest or
cost become due and payable.
FILE RETURNS
4.2 The Lessor, at its expense, shall, to the extent required or
permitted by applicable law and regulations, prepare and file
all tax returns and reports as may be required by governmental
or local authorities or otherwise in respect of the Lessor's
income, gross receipts, sales rent, GST and capital taxes. The
Lessee, at its expense, shall, to the extent required or
permitted by applicable laws and regulations, prepare and file
all other tax returns and reports in respect of any Outgoings
as may be required by governmental or local authorities or
otherwise.
REFUNDS
4.3 If any refund due to the Lessee from any taxing authority in
respect of any Outgoings paid by the Lessee is paid to the
Lessor by such authority, the same shall be paid
<PAGE> 122
- -6-
to the Lessee if no Event of Default has occurred under this
Lease which has not been remedied. Any such funds retained by
or remitted to the Lessor due to an Event of Default shall be
applied as provided in Part 16.
APPEALS
4.4 The Lessor and the Lessee shall, upon request of the other,
provide such data as is maintained by the party to whom the
request is made with respect to the Leased Property as may be
necessary to prepare any required returns and reports. The
Lessee may, upon Notice to the Lessor, at the Lessee's sole
cost and expense, protest, appeal, or institute such other
proceedings as the Lessee may deem appropriate to effect a
reduction of Outgoings and the Lessor, at the Lessee's
expense, shall cooperate with the Lessee in such protest,
appeal, or other action. In any such proceeding brought by the
Lessor, the Lessee shall cooperate with the Lessor at the
Lessee's sole cost and expense. The Lessee shall reimburse the
Lessor for the Lessor's reasonable costs of cooperating with
the Lessee for such protest, appeal or other action.
NOTICE TO LESSEE
4.5 The Lessor shall give prompt Notice to the Lessee of all
Outgoings payable by the Lessee under this Lease of which the
Lessor at any time has knowledge, but the Lessor's failure to
give any such Notice shall in no way diminish the Lessee's
obligations under this Lease to pay such Outgoings, but such
failure shall obviate any default under this Lease for a
reasonable time after the Lessee receives Notice of any
Outgoing which it is obliged to pay.
ADJUSTMENT
4.6 Outgoings imposed in respect of the tax-fiscal period during
which the Term terminated (other than Outgoings imposed on the
Lessee for which the Lessee is lawfully responsible) shall be
adjusted and prorated between the Lessor and the Lessee,
whether or not such Outgoing is imposed before or after
termination, and the obligations of each party to pay its
prorated share after termination shall survive such
termination.
UTILITY CHARGES
4.7 The Lessee will pay or cause to be paid when due all charges
for electricity, power, gas, oil, water, telecommunications
and other utilities used in the Leased Property during the
Term.
<PAGE> 123
- -7-
INSURANCE PREMIUMS
4.8 The Lessee will pay or cause to be paid when due all premiums
for the insurance required to be maintained under Part 13
during the Term.
PART 5 CONTINUANCE OF TERM
NO TERMINATION, ABATEMENT ETC
5.1 The Lessee shall remain bound by this Lease in accordance with
its terms and shall not take any action without the consent of
the Lessor to modify, surrender or terminate the same, and
shall not seek or be entitled to any abatement (except where
abatement is expressly provided for elsewhere in this Lease),
deduction, deferment or reduction of Rent, or set off or
counterclaim or any other defence or right or claim against
the Rent.
PARTIES REMAIN BOUND
5.2 The respective obligations of the Lessor and the Lessee shall
not be affected by reason of anything including without
limitation:
(a) any damage to, or destruction of, the Leased Property
or any portion of the Leased Property from whatever
cause other than any Taking of the Leased Property or
any portion of the Leased Property;
(b) the lawful or (except in the case of the Lessor)
unlawful prohibition of, or restriction upon, the
Lessee's use or possession of the Leased Property, or
any portion of the Leased Property, the interference
with such use by any Person other than the Lessor;
(c) if the Excluded Personal Property or any portion of the
Excluded Personal Property is removed from the Leased
Property by its true owner or any third party and/or
the true owner or any third party claims any rights in
the Excluded Personal Property or any portion of the
Excluded Personal Property and/or interferes with or
restricts or prevents the use of the Excluded Personal
Property or any portion of the Excluded Personal
Property and/or claims or obtains costs, losses or
damages as a result of the use of the Excluded Personal
Property or any portion of the Excluded Personal
Property by the Lessee
(d) any claim which the Lessee has or might have against
the Lessor or by reason of any default or breach of any
warranty by the Lessor;
<PAGE> 124
- -8-
(e) any bankruptcy, insolvency, reorganization,
composition, readjustment, liquidation, dissolution,
winding-up, moratorium, administration or other
proceedings affecting the Lessor;
(f) any defect (including any structural defect) in or
failure of the Leased Property its condition, design,
compliance with specifications, operation or fitness
for use;
(g) any interference, interruption, restriction,
curtailment or cessation in the use or possession of
the Leased Property or any part of the Leased Property
for any reason whatsoever of whatever duration and
including (but not limited to) the occurrence of any
Seizure Matter and damage to or destruction of the
Leased Property;
(h) the invalidity or unenforceability of any part of this
Lease;
(i) any event of force majeure frustration or
unenforceability in whole or in part of this Lease;
(j) any defect in title or any breach of obligations of any
party thereto or any claim by title paramount;
(k) any failure by the Lessor or any other Person to
perform any of its obligations under this Lease or
otherwise to the Lessee or any other Person;
(l) any event which might but for this clause have effect
to frustrate this Lease; or
(m) for any other cause whether similar or dissimilar to
any of the foregoing.
WAIVER OF RIGHTS BY LESSEE
5.3 The Lessee hereby specifically waives all rights arising from
any occurrence whatsoever which may now or in the future be
conferred upon it by law to:
(a) modify, surrender, cancel or terminate this Lease or
quit or surrender, the Leased Property or any portion
thereof; or
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(b) entitle the Lessee to any diminution, cessation,
abatement, reduction, suspension or deferment of the
Rent or other sums payable by the Lessee under this
Lease;
except as otherwise specifically provided in this Lease.
RENT ETC TO CONTINUE
5.4 The obligations of the Lessor and the Lessee under this Lease
shall be separate and independent covenants and agreements and
the Rent and all other sums payable by the Lessee under this
Lease shall continue to be payable in all events unless the
obligations to pay the same are terminated under the express
provisions of this Lease or by termination of this Lease under
Part 16.
LESSEE'S COST
5.5 All covenants, agreements and undertakings of the Lessee under
this Lease shall be performed at the Lessee's own cost,
expense and risk unless expressly stated otherwise.
RENT PAYMENT FINAL
5.6 Each payment of Rent made by the Lessee shall be final and the
Lessee will not seek or have any right to recover, claim or
recoup all or any part of such payment from the Lessor or any
other Person except in relation to payments made in error.
WITHHOLDING TAX
5.7 If the Lessee shall be legally obliged to withhold tax from
any payment due to the Lessor from the Lessee under this Lease
the Lessee shall withhold the minimum permissible amount but
shall otherwise comply with all covenants under this Lease
including the covenant to pay Rent.
PART 6 OWNERSHIP ISSUES
LESSEE'S ACKNOWLEDGMENT
6.1 The Lessee acknowledges that the Lessor is the registered
proprietor of the Land and that the Lessee has only the right
to the sole and exclusive possession and use of the Leased
Property upon the terms and conditions of this Lease.
LESSEE NOT TO ASSERT OWNERSHIP RIGHTS
6.2 The Lessee will not, at any time during the Term:
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(a) file any income tax return or other associated
documents;
(b) file any other document with or submit any document to
any governmental body or authority;
(c) enter into any written contractual arrangement with any
Person; or
(d) release any financial statements of the Lessee;
in each case that takes a position other than that the Lessor
is the registered proprietor of the Land.
LESSOR'S PERSONAL PROPERTY
6.3 The Lessee shall in all material respects, during the Term,
maintain all of the Lessor's Personal Property in good order,
condition and repair as shall be necessary in order to operate
the Facility for the Facility's Primary Intended Use in
compliance with all applicable Legal Requirements and
Insurance Requirements, and in accordance with customary
practice in the industry for the Primary Intended Use.
REPLACEMENT OF LESSOR'S PERSONAL PROPERTY
6.4 If any of the Lessor's Personal Property requires replacement
in order to comply with clause 6.3, the Lessee shall promptly
replace it with other similar property of the same or better
quality at the Lessee's sole cost and expense, and the
Replacement Property shall be deemed to be from the date of
acquisition part of the Lessor's Personal Property.
NO ENCUMBRANCE
6.5 The Lessee shall not cause or allow the Lessor's Personal
Property to be subject to any Encumbrance.
ADDITIONAL EQUIPMENT ETC
6.6 The Lessee shall also provide and maintain to a reasonable,
safe and proper standard and in working order all additional
items of equipment, fixtures, fittings and chattels and other
Personal Property as shall be necessary and appropriate in
order to reasonably and properly operate the Facility for its
Primary Intended Use.
LESSEE MAY ACQUIRE PERSONAL PROPERTY
6.7 The Lessee shall have the right but not the obligation to
acquire such tangible, moveable personal property as the
Lessee deems appropriate in relation to its operation of the
Leased Property and all such personal property shall be the
Lessee's Personal Property so long as it does not constitute
Replacement Property.
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ABANDONMENT OF LESSEE'S PERSONAL PROPERTY
6.8 All of the Lessee's Personal Property not acquired by the
Lessor under the Lessor's option contained in this Lease or
not removed by the Lessee within 20 days after the expiration
or earlier termination of this Lease shall be considered
abandoned by the Lessee and may be retained, used, stored,
appropriated, sold, destroyed or otherwise disposed of by the
Lessor without giving Notice to the Lessee and without any
payment to the Lessee and without any obligation to account to
the Lessee. The Lessee will, at its expense, repair all damage
to the Leased Property caused by the removal of the Lessee's
Personal Property, whether effected by the Lessee or the
Lessor other than damage resulting from the gross negligence
or wilful misconduct of the Lessor.
CHARGE OVER LESSEE'S ASSETS
6.9 The Lessee has at the date of this Lease concurrently granted
to the Lessor a fixed and floating charge over all of the
Lessee's assets including a security interest in the Lessee's
Personal Property (as such security is more particularly
described in the Security Agreement) and the Lessor covenants
(subject to unconditional payment to the Lessor of all money
and obligations secured by the Security Agreement and to the
Lessee not otherwise being in breach of its obligations to the
Lessor) to release absolutely the fixed and floating charge on
the earliest of:
(a) the expiration of the Term by effluxion of time;or
(b) surrender of the whole of the Leased Property
voluntarily accepted in the Lessor's absolute
discretion by the Lessor (but not otherwise); or
(c) the completion of the purchase of the Leased Property
by the Lessee under this Lease.
LESSOR DOES NOT OWN EXCLUDED PERSONAL PROPERTY
6.10 The Lessee acknowledges that the Lessor does not own, claim
ownership of, nor have any express or implied rights to allow
the Lessee to use the Excluded Personal Property and the
Lessee enters this Lease on that basis and shall not make any
claim nor bring any action against the Lessor in respect of
the Excluded Personal Property.
CLAIM IN RESPECT OF EXCLUDED PERSONAL PROPERTY
6.11 If a claim is made by the true owner or any third party of the
Excluded Personal Property against the Lessee, the Lessee
shall notify the Lessor, in writing, immediately upon learning
of any such claim and if any such claim is made against the
Lessor, the Lessee shall and does hereby indemnify the Lessor,
its principals,
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officers, directors, agents and employees (hereinafter, all
"Indemnities") from each and every such claim, cause of
action, damages, demand, obligation, fine, liability, loss,
settlement, lien, litigation, judgment, proceeding,
disbursement expense and/or cost, however defined and of
whatever kind or nature, known or unknown, foreseeable,
contingent or otherwise (including, but not limited to, legal
fees) in connection with such claim or claims.
REMOVAL OF EXCLUDED PERSONAL PROPERTY
6.12 If the true owner or any third party removes the Excluded
Personal Property or any portion of the Excluded Personal
Property from the Leased Property, the Lessee shall replace
the same without delay at its own expense by chattels of a
similar kind and of no lesser value and following such
replacement such chattels shall be deemed to be the Lessor's
Personal Property. There shall be no obligation on the Lessee
under this clause to replace (or pay for the replacement of)
the Residents' Personal Property.
PART 7 CONDITION OF LEASED PROPERTY USE AND ENVIRONMENTAL MATTERS
LEASED PROPERTY "AS IS"
7.1 The Lessee acknowledges:
(a) receipt and delivery of possession of the Leased
Property;
<PAGE> 129
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(b) that the Lessee has examined and inspected and
otherwise has knowledge of the condition of the Leased
Property before the execution and delivery of this
Lease and has found all of the same to be in good order
and repair and satisfactory for the Primary Intended
Use;
(c) the Lessee is leasing the Leased Property "as is" in
its present condition and the Lessee waives any claim
or action against the Lessor in respect of the
condition of the Leased Property and the Excluded
Personal Property;
(d) the Lessor makes no warranty or representation express
or implied, in respect of the Leased Property or the
Excluded Personal Property or any part of the Leased
Property or Excluded Personal Property, either as to
its fitness for use, design or condition for any
particular use or purpose or otherwise, as to the
quality of the material or workmanship, latent or
patent, it being agreed that all such risks are to be
borne by the Lessee;
(e) the Lessee is solely responsible for the condition of
the Leased Property and the Excluded Personal Property;
and
(f) the Lessor makes no warranty or representation express
or implied in respect of the Approvals, it being agreed
that the Lessee shall be responsible for obtaining,
maintaining and renewing all Approvals.
LESSEE'S COVENANTS RE APPROVALS ETC
7.2 The Lessee covenants that it complies with all obligations and
Legal Requirements including that it:
(a) has current valid Approvals;
(b) will obtain, maintain and renew all Approvals; and
(c) do all things necessary to ensure that all Approvals
are not prejudiced in any way.
7.3 The Lessee covenants that it:
(a) will immediately give Notice to the Lessor if any
Approvals are not obtained, not renewed or are refused
or have been revoked, suspended, terminated, otherwise
cancelled or made subject to sanctions or conditions
under Essential Legislation;
(b) will immediately give Notice to the Lessor if the
Lessee is aware of any notice or information, whether
formal or informal, that may form the basis for any
Approvals to be refused or be revoked, suspended,
terminated, otherwise
<PAGE> 130
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cancelled or made subject to sanctions or conditions
under Essential Legislation;
(c) will during the Term continuously operate the Facility
in accordance with its Primary Intended Use and shall
use all reasonable endeavours to promote such business;
and
(d) (without prejudice to the foregoing and except where
required by law) shall not reduce, seek to reduce or
allow to be reduced the number of approved beds, places
or licenses at any Facility.
7.4 The Lessee covenants to rectify any remedial breaches of the
covenants contained in clause 7.2 or clause 7.3 within 30 days
or such lesser period of time as stipulated in Essential
Legislation, except where the Lessor determines such breaches
are critical or fundamental in which case such breaches must
be rectified immediately.
USE OF LEASED PROPERTY
7.5 Without prejudice to clauses 7.2, 7.3 and 7.4 the Lessee shall
not use the Leased Property or any portion thereof for any
other use than the Primary Intended Use. No use shall be made
or permitted to be made of the Leased Property, and no acts
shall be done, which will cause or permit the cancellation or
avoidance of or refusal of payment under any insurance policy
covering the Leased Property or any part thereof, nor shall
the Lessee sell or otherwise provide to residents or patients,
or permit to be kept, used or sold in or about the Leased
Property any article which may be prohibited by law or by the
standard form of fire insurance policies, or any other
insurance policies required to be carried out under this
Lease, or fire underwriter's regulation.
NO WASTE
7.6 The Lessee shall not commit or suffer to be committed any
waste (not being ameliorating waste in compliance with the
provisions of this Lease) on the Leased Property, or in any
Facility, nor shall the Lessee cause or permit any nuisance.
NOT TO SUFFER CERTAIN THINGS
7.7 The Lessee shall neither use nor suffer or permit the Leased
Property or any portion of the Leased Property, or the
Lessee's Personal Property, or the Excluded Personal Property
to be used in such a manner which:
(a) impairs the Lessor's (or the Lessee's, as the case may
be) title; or
(b) is or in the proper opinion of the Lessor may be or
become a nuisance or
<PAGE> 131
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damage (including, without limitation, annoyance caused
by radio, television or other sound-producing apparatus
or any machinery or mechanical instrument) to the
Lessor or to the owners or occupiers of any adjoining
or neighbouring property.
NO WARRANTY RE USE
7.8 There is no implied representation or warranty or other
obligation on the part of the Lessor that the Primary Intended
Use is a permitted use under the Planning Acts.
NOTICE OF DEFECT
7.9 Without delay upon becoming aware of it the Lessee shall give
Notice to the Lessor of any defect in the state of the Leased
Property which would or might give rise to an obligation on
the Lessor to do or refrain from doing anything in order to
comply with any duty of care imposed on the Lessor by statute
or common law and the Lessee shall indemnify the Lessor
against all actions, claims, costs, demands, expenses,
liabilities and losses arising from any failure to give such
Notice and at all times to display and maintain all safety
notices (and their wording) which the Lessor may from time to
time reasonably require to be displayed at the Leased
Property.
NO HAZARDOUS SUBSTANCES
7.10 The Lessee shall not permit, conduct or allow on the Leased
Property, the generation, introduction, presence, maintenance,
use, receipt, acceptance, treatment, manufacture, production,
installation, management, storage, disposal or release of any
Hazardous Substances except in compliance with all
Environmental Laws.
NOTICE OF REGULATORY ACTIONS
7.11 The Lessee will Notify the Lessor immediately upon learning of
any existing, pending or threatened:
(a) investigation, inquiry, claim or action by any
governmental or statutory authority or local council in
connection with any Environmental Laws;
(b) Third Party Claims;
(c) Regulatory Actions; and/or
(d) Contamination of the Leased Property.
COST OF REMEDIAL ACTION
7.12 (a) If any investigation and/or Clean-Up is required by
any Environmental Law or by the Lessor following an
Environmental Audit under clause 7.14, then the
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Lessee shall complete, at its own expense, such
investigation and/or Clean-Up or cause each such other
Person as may be responsible for any of the following
to conduct such investigation and/or Clean-Up.
(b) In the case of the expiration or earlier termination of
the Term of this Lease, the Lessee shall cause the
Leased Property to be delivered in a manner that is
required to ensure that the then present or future use,
operation, leasing, development, construction,
alteration, refinancing or sale of the Leased Property
shall not be restricted by any environmental condition.
DELIVERY OF ENVIRONMENTAL DOCUMENTS
7.13 The Lessee shall deliver to the Lessor or its
Associated Companies, complete copies of any and all
Environmental Documents that may now be in or at any
time in the future come into the possession of the
Lessee.
ENVIRONMENTAL AUDIT
7.14 At the Lessee's expense, the Lessee shall from time to
time, after the Lessor's request therefor, provide to
the Lessor a written certificate, in form and substance
satisfactory to the Lessor, from an environmental firm
acceptable to the Lessor, which states that the Leased
Property does not contain any Hazardous Substances
other than those Hazardous Substances which will not
materially adversely affect either the Primary Intended
Use of the Facility or the value of the Leased
Property. All tests and samples shall be conducted
using generally accepted and scientifically valid
technology and methodologies. The Lessee shall give the
engineer or environmental consultant reasonable access
to the Leased Property and to all records in the
possession of the Lessee that may indicate the presence
(whether current or past) or Release of any Hazardous
Substances on, in, under or about the Leased Property.
The Lessee shall also provide the engineer or
environmental consultant an opportunity to interview
such persons employed (at any time) in connection with
the Leased Property as the engineer or consultant deems
appropriate. After the Lessor has requested and
received such a certificate from the Lessee, the Lessor
shall not be entitled to request any further
certificates unless:
<PAGE> 133
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(a) there have been any changes, modifications or additions
to any Environmental Laws which apply to or affect the
Leased Property;
(b) alterations of a structural nature have been made to
the Leased Property;
(c) there has been a significant change in the condition of
the Leased Property; or
(d) the Lessor has another good reason for requesting such
certificate or certificates.
If the engineer or environmental consultant discovers any
Hazardous Substances, the Lessee shall immediately report such
fact to the Lessor, and the Lessee shall perform all of the
Lessee's other obligations under this Lease with respect to
such Hazardous Substances.
RIGHT OF ENTRY WHERE ENVIRONMENTAL MATTER
7.15 If the Lessee fails to provide an environmental audit referred
to in clause 7.12, the Lessee shall permit the Lessor from
time to time, by its employees, agents, contractors or
representatives, to enter upon the Leased Property for the
purposes of taking samples and conducting such soil and
chemical tests or any other environmental investigations,
examinations, or analyses (hereafter collectively referred to
as "Investigation") as the Lessor may desire. The Lessor, and
its employees, agents, contractors, consultants and/or
representatives, shall conduct any Investigation in a manner
which does not unreasonably interfere with the Lessee's use
and operations except if the Investigation cannot otherwise be
reasonably and inexpensively conducted. The Lessor shall give
the Lessee reasonable prior notice other than in an emergency,
before entering onto the Leased Property to conduct such
Investigation, and shall provide copies of any reports or
results to the Lessee, and the Lessee shall cooperate fully in
such Investigation.
ENVIRONMENTAL MATTERS ON TERMINATION
7.16 At the end of this Lease, the Lessee shall cause the Leased
Property to be delivered free of any and all Regulatory
Actions and Third Party Claims and otherwise in compliance
with all Environmental Laws affecting the Leased Property.
<PAGE> 134
- -18-
COMPLIANCE WITH ENVIRONMENTAL LAWS
7.17 The Lessee shall comply with, and cause its agents, servants
and employees, to comply with, and shall use reasonable
efforts to cause each tenant and other occupant and user of
the Leased Property, and the agents, servants and employees of
such tenants, occupants and users, to comply with each and
every Environmental Law applicable to the Lessee, the Leased
Property and each such tenant, occupant or user with respect
of the Leased Property. Specifically, but without limitation:
(a) The Lessee shall obtain and maintain (and the Lessee
shall use reasonable efforts to cause each tenant,
occupant and user to obtain and maintain) all permits,
certificates, licences and other consents and approvals
required by any applicable Environmental Law from time
to time with respect to the Lessee, each and every part
of the Leased Property and/or the conduct of any
business at the Facility or related thereto;
(b) The Lessee shall not cause, suffer or permit any
Contamination;
(c) If a Contamination occurs, the Lessee shall promptly
Clean-Up and remove any Hazardous Substance or cause
the Clean-Up and the removal of any Hazardous Substance
and in any such case the Clean-Up and removal of the
Hazardous Substance shall be effected in strict
compliance with and in accordance with the provisions
of the applicable Environmental Laws;
(d) Promptly upon receipt by the Lessee of notice or
discovery by the Lessee of any fact or circumstance
which might result in a breach or violation of any
covenant or agreement, the Lessee shall notify the
Lessor in writing of such fact or circumstance; and
(e) Promptly upon receipt of any request, order or other
notice relating to the Leased Property under any
Environmental Law, the Lessee shall forward a copy
thereof to the Lessor.
ENVIRONMENTAL RELATED REMEDIES
7.18 In the event of a breach by the Lessee beyond any applicable
notice and/or grace period of its covenants with respect to
environmental matters, the Lessor may, in its sole discretion,
do any one or more of the following (the exercise of one right
or remedy under this Lease not precluding the simultaneous or
subsequent taking of any other right hereunder):
<PAGE> 135
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(a) Cause the Clean-Up of any Hazardous Substance or other
environmental condition on or under the Leased
Property, or both, at the Lessee's cost and expense; or
(b) Pay on behalf of the Lessee any damages, costs, fines
or penalties imposed on the Lessee as a result of any
Regulatory Actions; or
(c) Pay, on behalf of the Lessee, any damages, costs, fines
or penalties imposed on the Lessee as a result of any
Third Party Claims; or
(d) Demand that the Lessee make immediate payment of all of
the costs of such Clean-Up and/or exercise of the
remedies set forth in this clause 7.16 incurred by the
Lessor and not paid by the Lessee as of the date of
such demand whether or not such sums were added to the
indebtedness secured by this Lease (and whether or not
any court has ordered the Clean-Up) and such costs
shall become immediately due and payable, without
notice.
ENVIRONMENTAL INDEMNITIES
7.19 The Lessee shall and does hereby indemnify, defend and hold
harmless the Lessor, its principals, officers, directors,
agents and employees from each and every incurred and
potential claim, cause of action, damage, demand, obligation,
fine, laboratory fee, liability, loss, penalty, imposition
settlement, levy, lien, removal, litigation, judgment,
proceeding, disbursement, expense and/or cost (including
without limitation the cost of each and every Clean-Up),
however defined and of whatever kind or nature, known or
unknown, foreseeable or unforeseeable, contingent or otherwise
(including, but not limited to, legal fees, consultants' fees,
experts' fees and related expenses, capital, operating and
maintenance costs), incurred in connection with:
(a) any investigation or monitoring of site conditions; and
(b) any Clean-Up required or performed by any state or
local government entity or performed by any other
entity or Person because of the presence of any
Hazardous Substance, Release, threatened Release or any
Contamination on, in, under or about any of the Leased
Property which may be asserted against, imposed on,
suffered or incurred by the Lessor arising out of or in
any way related to, or allegedly arising out of or due
to any environmental matter including, but not limited
to, any one or more of the following:
(i) the disposal, release, threatened release or
the presence of or disturbance of any
Hazardous Substance on, in, at, from, under or
affecting the Leased Property, including,
without limitation, the presence of any
Hazardous Substance which has come to be
located
<PAGE> 136
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in, on, at, under, or near the Leased
Property from another location;
(ii) all injuries to health or safety (including
wrongful death), or to the environment, by
reason of environmental matters relating to
the condition of or activities past or present
on, at, in, under any of the Leased
Properties;
(iii) all breaches, and alleged breaches, of any
Environmental Law relating to the Leased
Property or any activity on, in, at, under or
near the Leased Property;
(iv) all misrepresentations relating to
environmental matters in any documents or
materials furnished by the Lessee to the
Lessor and/or its representatives;
(v) each and every Event of Default under this
Lease relating to environmental matters;
(vi) any and all legal proceedings brought or
threatened against any the Lessor, settlements
reached and governmental orders relating to
any Hazardous Substances at, on, in, under or
near the Leased Property, and all demands of
governmental authorities, and all policies and
requirements of the Lessor's insurers, based
upon or in any way related to any Hazardous
Substances at, on, in, under the Leased
Property.
RIGHTS ADDITIONAL AND WILL SURVIVE
7.20 The rights granted to the Lessor under this clause 7 are in
addition to and not in limitation of any other rights or
remedies available to the Lessor under this Lease or allowed
at law or in equity. The indemnification obligations set forth
in this clause 7 shall survive the expiration or earlier
termination of the Term of this Lease.
LEGAL AND INSURANCE REQUIREMENTS
7.21 Subject to Part 12 relating to permitted contests, the Lessee,
at its expense, will promptly comply with all applicable Legal
Requirements and Insurance Requirements in respect of the use,
operation, maintenance, repair and restoration of the Leased
Property and the Lessee's Personal Property, whether or not
compliance requires execution of structural changes or other
works to the Leased Property and whether by landlord or
tenant, or interferes with the use and enjoyment of the Leased
Property.
<PAGE> 137
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PART 8 FINANCIAL COVENANTS
LESSEE'S TANGIBLE NET WORTH
8.1 At all times during the Term, the Lessee shall maintain a
Tangible Net Worth of not less than the Minimum Net Worth. If
at any time during the Term, the Lessor or the Lessee
discovers that the Lessee's Tangible Net Worth is less than
the Minimum Net Worth then the Lessee shall cause its
shareholders or new shareholders to contribute equity capital
to the Lessee as necessary to satisfy the requirements under
this Part. The Lessee must satisfy such requirements within a
30 day period after discovery, and the failure to do so shall
constitute an Event of Default under this Lease.
CURRENT RATIO
8.2 All times during the Term of this Lease the Lessee shall
maintain a ratio of Current Assets to Current Liabilities of
not less than 1.1 to 1.
CASH FLOW/RENT RATIO
8.3 At all times during the Term the Lessee shall maintain a ratio
of Cash Flow to Rent of not less than 1.25 to 1.
CASH FLOW COVERAGE FOR ADDITIONAL DEBT
8.4 The Lessee shall not incur any additional Debt until such time
as the ratio of Cash Flow to Debt Service equals or exceeds
the ratio of Cash Flow to Rent for the relevant Lease Year
which the Lessee must maintain in accordance with clause 8.3
(after including the proposed additional Debt in the
definition of Debt for purposes of arriving at Debt Service
with respect to the new Debt). The Lessee's Debt shall be
determined as of the end of each calender year from the
Lessee's Accounts. As used in this clause, Debt excludes loans
from Associated Companies of the Lessee which are subordinated
to the rights of the Lessor under written subordination
agreements in a form and substance acceptable to the Lessor
acting reasonably.
MINIMUM CAPITAL EXPENDITURE
8.5 The Lessee shall during each Lease Year expend at least $300
(exclusive of GST and any sums expended in replacing Lessor's
Personal Property in accordance with clause 6.4) per Bed for
capital expenditures to improve the net underlying asset value
of the Facilities increased in each year by a proportion
equivalent to the increase in the Consumer Price Index during
the preceding Lease Year (making such arithmetic adjustments
as shall be necessary to reflect any rebasing of the Consumer
Price Index).
<PAGE> 138
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LIMITATION ON DISTRIBUTIONS
8.6 During the whole of the second year of the Term, the Lessee
shall not make any payment or distribution by way of dividend,
loan (including, but not limited to, a loan to a Group
Company), principal or interest payment or Management Fees or
otherwise to any Person (whether an Associated Company or
not). For the remainder of the Term, the Lessee shall not make
any payment or distribution by way of dividend, loan
(including, but not limited to, a loan to a Group Company),
principal or interest payment or Management Fees or otherwise
to any Person (whether an Associated Company or not) except
for any such payments or distribution to the Lessor or any of
the Lessor's Associated Companies unless and until the Lessee
has first paid the Rent and Additional Charges due for the
month in which such payment or distribution is made and any
due in respect of any previous period.
PART 9 MAINTENANCE AND REPAIR
MAINTENANCE OF THE LEASED PROPERTY
9.1 The Lessee, at its expense, will keep the Leased Property and
all services, facilities, landscaping, private roadways,
pavements and kerbs appurtenant to the Leased Property and
which are under the Lessee's control and the Lessee's Personal
Property and the Excluded Personal Property in good and
substantial repair and condition including rebuilding of the
whole of the Leased Property where necessary (whether or not
the need for such repairs occurs as a result of the Lessee's
use, any prior use, the elements or the age of the Leased
Property, or any portion of the Leased Property or as a result
of any latent or inherent defects or any cause whatever).
<PAGE> 139
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CAPITAL IMPROVEMENTS
9.2 The Lessee shall make the structural and capital improvements
to the Leased Property required by clause 8.5 in accordance
with annual capital budgets to be prepared by the Lessee and
submitted to the Lessor by 1 June of each Lease Year and
approved by the Lessor (such approval not to be unreasonably
withheld or delayed). If a capital budget is not so approved
the Lessee shall within 14 days submit a revised version which
procedure shall be repeated as often as may be necessary.
REPAIR QUALITY
9.3 All repairs shall, to the extent reasonably achievable, be at
least equivalent in quality to the original work, and, subject
to the provisions of clause 9.11, where, by reason of age or
condition, such repairs cannot be made to the quality of the
original work, the property to be repaired shall be replaced.
PAINT
9.4 As often as shall be necessary the Lessee will paint those
parts of the exterior and interior of each Facility which have
been previously painted or are required to be painted. The
Lessor shall have the right (acting reasonably) to determine
when it is necessary to paint each Facility.
NOTICE TO LESSEE
9.5 The Lessee shall within 3 months (or such longer period as the
Lessor shall allow having regard to the works required to
remedy the disrepair or breach of covenant or condition) after
service upon the Lessee of Notice of any disrepair or breach
of covenant or condition for which the Lessee is liable under
this Lease (or immediately in case of need) make good the
same.
SHORING
9.6 The Lessee shall do or cause others to do all reasonably
required shoring of the Leased Property or adjoining property
(whether or not owned by the Lessor) or of the foundations and
walls of the Leased Property, and every other act necessary or
appropriate for the preservation and safety of the Leased
Property, by reason of or in connection with any subsidence,
settling or excavation or other building operation upon any of
the Leased Property or adjoining property.
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LEVEL OF MAINTENANCE
9.7 It is the intention of the provisions of this clause 9 that
the level of maintenance of the Leased Property shall be not
less than that necessary to maintain each Facility for the
Primary Intended Use in a manner required by the Essential
Legislation and consistent with the generally accepted
standards of good maintenance applied in other facilities of a
similar nature for the Primary Intended Use in the locality of
that Facility and broadly in the same market sector as that
Facility.
LESSOR NOT LIABLE FOR REPAIRS ETC
9.8 The Lessor shall not under any circumstances be required to
build or rebuild any improvements on the Leased Property, or
to make any repairs, replacements, alterations, restorations
or renewals of any nature or description to the Leased
Property, whether ordinary or extraordinary, structural or
nonstructural, foreseen or unforeseen, or upon any adjoining
property, whether to provide lateral or other support for the
Leased Property or abate a nuisance affecting the Leased
Property, or otherwise, or to make any expenditure whatsoever
with respect to the Leased Property, in connection with this
Lease, or to maintain the Leased Property in any way.
LESSEE WAIVER
9.9 The Lessee waives, to the extent permitted by law, the right
to make repairs or to execute other works at the expense (in
whole or part) of the Lessor (or to require the Lessor to
execute the same) under any law in effect at the time of the
execution of this Lease or in future enacted.
LESSOR NOT CONTRACTING PARTY
9.10 Nothing contained in this Lease shall be construed as:
(a) constituting the consent or request of the Lessor,
expressed or implied, to any contractor, subcontractor,
labourer, supplier or vendor to or for the performance
of any labour or services or the furnishing of any
materials or other property for the construction,
alteration, addition, repair or demolition of the
Leased Property or any part thereof; or
(b) giving the Lessee any right, power or permission to
contract for or permit the performance of any labour or
services or the furnishing of any materials or other
property in such fashion as would permit the making of
any claim against the Lessor in respect thereof or to
make any agreement that may create, or in any way be
the basis for any right, title, interest, lien, claim
or other encumbrance upon the title of the Lessor to
the Leased Property, or any
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portion thereof.
REPLACEMENT PROPERTY
9.11 The Lessee shall from time to time as required (including as
required pursuant to any Legal Requirements) replace the
Replaced Property with the Replacement Property provided,
however, that the Replacement Property shall:
(a) be in good operating condition;
(b) have a then value (as adjusted for inflation by
reference to movements in the Consumer Price Index) and
useful life at least equal to the value and estimated
useful life of the Replaced Property as of the date
hereof for Replaced Property specified above), or have
a value and useful life at least equal to the value and
estimated useful life of the Replaced Property
immediately before the time that such Replaced Property
shall have been required to be replaced in accordance
with these provisions; and
(c) be suitable for a use which is the same or similar to
that of the Replaced Property.
The Lessee shall repair at its sole cost and expense all
damage to the Leased Property caused by the removal of
Replaced Property or the installation of Replacement Property.
All Replacement Property shall become the property of the
Lessor and shall become a part of the Fixtures or the Lessor's
Personal Property, as the case may be, to the same extent as
the Replaced Property had been. The Lessee shall promptly
advise the Lessor of all such Replacement Property, and if so
requested by the Lessor in writing, the Lessee shall promptly
cause to be executed and delivered to the Lessor an invoice,
bill of sale or other appropriate instrument evidencing the
transfer or assignment to the Lessor of all estate, right,
title and interest (other than the leasehold estate created by
this Lease) of the Lessee or any other Person in and to the
Replacement Property, free from all liens and other exceptions
to title and encumbrances, and the Lessee shall pay all taxes,
fees, costs and other expenses that may become payable as a
result thereof.
YIELD UP
9.12 Unless the Lessor transfers the Leased Property to the Lessee
under this Lease, the Lessee will, upon the expiration or
prior termination of the Term, vacate and yield up the Leased
Property to the Lessor in all material respects in such
condition as is consistent with the Lessee's repairing
covenants set out in clause 9.1 and the Lessee's obligation in
clause 8.5 except as permitted or required by the provisions
of this Lease, in full compliance with all covenants and
provisions of this Lease free
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from any Encumbrance.
ENCROACHMENTS
9.13 If any Facility, at any time, encroaches upon any property,
street or right-of-way adjacent to that Facility, or violates
the agreements or conditions contained in any lawful
restrictive covenant or other agreement affecting that
Facility, or any part thereof, or impairs the rights of others
under any easement or right-of-way to which that Facility is
subject, then promptly upon the request of the Lessor or at
the behest of any Person affected by any such encroachment,
violation or impairment, the Lessee shall, at its expense,
subject to its right to contest the existence of any
encroachment, violation or impairment as provided in Part 12
and in such case, in the event of an adverse final
determination, either:
(a) obtain valid and effective waivers or settlements of
all claims, liabilities and damages resulting from each
such encroachment, violation or impairment, whether the
same shall affect the Lessor or the Lessee; or
(b) make such changes in that Facility, and take such other
actions, as the Lessee in the good faith exercise of
its judgment deems reasonably practicable, to remove
such encroachment, and to end such violation or
impairment, including, if necessary, the alteration of
that Facility, and in any event take all such actions
as may be necessary in order to be able to continue the
operation of that Facility for the Primary Intended Use
substantially in the manner and to the extent that
Facility was operated before the assertion of such
violation, impairment or encroachment.
The Lessee may offer the Lessor a full indemnity in respect of
any such matters by way of remedy which the Lessor may in its
absolute discretion accept or refuse by way of discharge of
the Lessee's obligations under this clause. The Lessee shall
not have any claim or set off or deduction or counterclaim
with respect to any such violation, impairment or
encroachment. Any alteration must be made in conformity with
the applicable requirements of Part 10.
<PAGE> 143
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PART 10 ALTERATIONS AND ADDITIONS
ALTERATIONS REQUIRED BY LAW
10.1 The Lessee shall not make any structural or external
alterations, improvements or additions to the Leased Property
or any part thereof except such as may be required by any
Legal Requirement or for the proper performance of the
Obligations.
OTHER ALTERATIONS
10.2 The Lessee shall not make or permit to be made any internal
nonstructural alterations, improvements or additions or any
structural or external alterations improvements or additions
(not being prohibited by clause 10.1) of or to the Leased
Property or any part thereof, unless and until the Lessee has
caused plans and specifications to have been prepared, at the
Lessee's expense, by a qualified architect (save for minor
nonstructural alterations, improvements or additions which
have a financial value of less than $50,000 in which case
architect plans need not be provided to the Lessor unless the
Lessor reasonably so requests) and has obtained the Lessor's
prior written approval to such plans and specifications (which
approval shall not be unreasonably withheld or delayed) and
will in any event be granted (subject to such conditions as
the Lessor may reasonably require) for any alterations
required by any Legal Requirement or Insurance Requirement or
to maintain the registration of a Facility in compliance with
the Lessee's covenants hereunder).
COST LESS THAN $50,000
10.3 If the estimated cost of the alteration, improvement or
addition is less than $50,000 (exclusive of any GST payable
thereon), the Lessee shall give the Lessor at least 15
Business Days Notice of such planned alteration, improvement
or addition in advance of the commencement of construction.
COST EXCEEDS $300,000
10.4 If the estimated cost of the alteration, improvement or
addition is or exceeds $300,000 then the Lessee shall deposit
with the Lessor an amount equal to the estimated cost of the
alteration, improvement or addition or shall provide the
Lessor with evidence (if satisfactory to the Lessor) of the
availability to the Lessee of the funds for such work. If the
Lessee deposits the funds, the Lessor shall retain these funds
in an interest bearing account in the joint names of the
Lessor and the Lessee but under the sole control of the Lessor
and pay such interest reasonably as it is actually received
(net of any deduction by the bank) on the balance deposited to
the Lessee and disburse the amount so deposited in the same
manner as is provided for insurance proceeds in Part 14 of
this Lease.
<PAGE> 144
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DEPOSIT INSUFFICIENT
10.5 If the deposit is determined by the Lessor at any time to be
insufficient for the completion of the addition, improvement
or alteration, the Lessee shall immediately deposit with the
Lessor any deficiency to be held and disbursed by the Lessor
as provided for herein.
TERMINATION BEFORE ALTERATIONS
10.6 If this Lease is terminated without the alterations or
addition having been commenced the funds will be refunded to
the Lessee with the accrued interest. On completion of the
alterations or addition the funds and interest not properly
disbursed shall be paid to the Lessee.
WORK TO BE PERFORMED IN WORKMANLIKE MANNER ETC
10.7 The Lessee shall ensure that any work carried out by the
Lessee to the Leased Property (including work under this
clause 10):
(a) is done in accordance with the relevant plans and
specifications approved by the Lessor (provided that
such approval shall not be unreasonably withheld or
delayed);
(b) is done at the Lessee's expense;
(c) is done promptly, and in a first class workmanlike
manner by a contractor approved by the Lessor (provided
that such approval shall not be unreasonably withheld
or delayed);
(d) shall constitute a complete architectural unit in
keeping with the character of the relevant Facility and
the area in which the Leased Property is located;
(e) is done in accordance with all Legal Requirements and
the reasonable requirements and directions of the
Lessor;
(f) will not diminish the value of the relevant Facility or
change the Primary Intended Use of the relevant
Facility.
<PAGE> 145
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LESSOR TO OWN
10.8 Each and every such improvement, alteration or addition shall
immediately become a part of the Leased Property and shall
belong to the Lessor subject to the terms and conditions of
this Lease.
PART 11 ENCUMBRANCES
11.1 Subject to the provisions of Part 12, the Lessee will not
directly or indirectly create or allow to remain and will
promptly discharge at its expense any lien, Encumbrance,
attachment, title retention agreement or claim upon the Leased
Property or any attachment, levy, claim or Encumbrance in
respect of the Rent, not including, however:
(a) this Lease;
(b) the matters, if any, set forth in Schedule 3;
(c) restrictions, liens and other Encumbrances which are
permitted by the terms of this Lease or are consented
to in writing by the Lessor before registration and the
Facility Mortgagee or any easements granted by or
consented to in writing by the Lessor;
(d) liens for those taxes of the Lessor which the Lessee is
not required to pay under this Lease;
(e) liens for Outgoings or for sums resulting from
noncompliance with Legal Requirements so long as:
(i) the same are not yet payable; or
(ii) such liens are in the process of being
contested as permitted by Part 12;
(f) liens of mechanics, labourers, material men, suppliers
or vendors for sums either disputed or not yet due,
provided that:
(i) the payment of such sums shall not be
postponed under any related contract for more
than 60 days after the completion of the
action giving rise to such lien and such
reserve or other appropriate
<PAGE> 146
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provisions as shall be required by law or
generally accepted accounting principles shall
have been made therefor or;
(ii) any such liens are in the process of being
contested as permitted by Part 12 and during
the period of such contest payment may
lawfully be delayed for more than 60 days;
(g) any Encumbrances created by the Lessor or which relate
to Debt or other indebtedness of the Lessor or any of
its Associated Companies; and
(h) security granted over this Lease for the repayment of
borrowed money to assist in the operation of the
Facility and the making of any alterations or additions
of the type contemplated by this Lease.
PART 12 PERMITTED CONTESTS
LESSEE MAY CONTEST
12.1 The Lessee may, on its own (or on the Lessor's behalf or in
the Lessor's name), but at the Lessee's sole cost and expense,
contest, by appropriate legal proceedings conducted in good
faith and with due diligence, the amount or validity of any
Outgoing or any Legal Requirement or Insurance Requirement or
any lien, attachment, levy, encumbrance, charge or claim, or
any encroachment or restriction burdening the Leased Property
("Claims") not otherwise permitted by Part 11, (but this shall
not be deemed or construed in any way as relieving, modifying
or extending the Lessee's covenants to pay or its covenants to
cause to be paid any such charges at the time and in the
manner provided in this Part 12).
LESSEE NOT RELIEVED
12.2 Legal proceedings under clause 12.1 shall not operate to
relieve the Lessee from its obligations under this Lease and
the Lessee must not cause or allow the sale of the Leased
Property, or any part thereof, to satisfy the same or cause
the Lessor or the Lessee to be in default under any
Encumbrance or in violation of any Legal Requirements or
Insurance Requirements upon the Leased Property or any
interest therein.
LESSEE TO PROVIDE BOND OR DEPOSIT
12.3 Upon request of the Lessor, the Lessee shall either:
(a) provide a bond, letter of credit or other assurance
reasonably satisfactory to the Lessor that all Claims
which may be assessed against the Leased Property
<PAGE> 147
- -31-
together with interest, costs and penalties, if any,
thereon will be paid; or
(b) deposit within the time otherwise required for payment
with a bank or trust company selected by the Lessor as
trustee, as security for the payment of such Claims,
money in an amount sufficient to pay the same, together
with interest, costs and penalties in connection
therewith and all Claims which may be assessed against
or become a Claim on the Leased Property, or any part
thereof, in the legal proceedings.
EVIDENCE OF DEPOSIT
12.4 The Lessee shall furnish the Lessor and any Facility Mortgagee
and any other party entitled to enforce any Legal Requirements
or Insurance Requirements with such evidence of such deposit
as they may reasonably require within 5 days of such deposit
under clause 12.3. The Lessor agrees to join in any such
proceedings if the same are required to legally prosecute such
contest of the validity of such Claims. The Lessor shall not
by so doing be subjected to any liability for the payment of
any costs or expenses in connection with any proceedings under
clause 12.1 and the Lessee covenants to indemnify and save
harmless the Lessor from any such costs or expenses, including
but not limited to reasonable legal fees incurred in any
arbitration or mediation proceeding, trial, appeal and
post-judgment enforcement proceedings. The Lessee shall be
entitled to any refund of any Claims and such charges and
penalties or interest thereon which have been paid by the
Lessee or paid by the Lessor and for which the Lessor has been
fully reimbursed.
LESSOR MAY SATISFY IN DEFAULT
12.5 If the Lessee fails to pay or satisfy the requirements or
conditions of any Claims when due or to provide the security
therefor as provided in this clause and to diligently
prosecute any contest of the same, the Lessor may, upon 30
days' advance written Notice to the Lessee, pay or satisfy
such Claims together with any interest and penalties and the
same (or the cost thereof) shall be repayable by the Lessee to
the Lessor forthwith as Additional Charges. If the Lessor
reasonably determines that the giving of such Notice would
risk loss to the Leased Property or cause damage to the
Lessor, then the Lessor shall give such written Notice as is
practical under the circumstances.
<PAGE> 148
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FURTHER DEPOSIT
12.6 At any time after an Event of Default has occurred (and if
remediable has not been cured) the Lessor, in its sole
discretion, shall be entitled to require the Lessee to pay
monthly a pro rata portion of the amounts required to comply
with the Insurance Requirements, any Outgoing and any Legal
Requirements, and when such obligations become due, the Lessor
shall pay them (to the extent of the deposit) upon Notice from
the Lessee requesting such payment. If sufficient funds have
not been deposited to cover the amount of the obligations due
at least 30 days before the due date, the Lessee shall
forthwith deposit the same with the Lessor upon written
request from the Lessor which shall account to the Lessee for
interest thereon in the manner referred to in Part 10 above.
LESSOR TO APPLY FUNDS
12.7 Upon an Event Default under this Lease, any of the funds
remaining on deposit may be applied under this Lease, in any
manner and on such priority, as determined by the Lessor and
without Notice to the Lessee and accounted for as a payment
made by the Lessee for the Lessor.
PART 13 INSURANCE
LESSEE TO INSURE
13.1 During the Term the Lessee shall at all times keep the Leased
Property, and all property located in or on the Leased
Property, including the Lessor's Personal Property and the
Lessee's Personal Property, insured with the kinds and amounts
of insurance described this clause 13.
LESSOR MAY INSURE
13.2 The Lessor may, by Notice to the Lessee, insure or procure
insurance on behalf of and in the name of the Lessee and the
Lessor and such others as the Lessor may require in the same
manner and on the same terms as the Lessee is required to
insure under this Lease and in such circumstances:
(a) the Lessee shall pay the premium for the same (or any
increased premiums) to the Lessor or directly to the
insurer or the insurance broker as may be directed by
the Lessor on demand;
(b) all other obligations relating to such insurance
(including for the avoidance of doubt dealing with the
insurance proceeds and the Lessee's obligations
<PAGE> 149
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regarding restoration) shall remain with the Lessee or
the Lessor as specified in this Lease;
(c) this insurance shall be written by reputable companies
approved by the Lessor and the Lessor shall be entitled
to retain for its own benefit any commission paid or
allowed by the insurers;
(d) all such policies provided and maintained during the
Term shall be placed with an insurance office of good
repute having its principal place of business in
Australia;
(e) the policies must name the Lessor as an additional
insured.
PAYMENT OF LOSSES
13.3 Losses shall be payable to the Lessor or the Lessee as
provided in Part 14. In addition, the policies shall name as
an additional insured any Facility Mortgagee and must be in
accordance with any such other requirements as may be
established by the Facility Mortgagee.
LOSS ADJUSTMENT
13.4 Any loss adjustment of an amount in excess of $250,000 shall
require the written consent of the Lessor, the Lessee, and the
Facility Mortgagee, which consent shall not be unreasonably
withheld by either the Lessor or the Lessee. Evidence of
insurance (including evidence of timely renewal thereof) shall
be deposited with the Lessor and, if requested, with the
Facility Mortgagee.
REQUISITE INSURANCE
13.5 The requisite insurance referred to in clause 13.1 is as
follows:
(a) Insured Risks including but not limited to sprinkler
leakage, in an amount not less than one hundred per
cent (100%) of the then Full Replacement Cost thereof.
(b) Business interruption (including without limitation
rent payable following the temporary or permanent
closure of any of the Leased Property as a result of
any notifiable disease and/or following loss or
expiration (without renewal) or other termination or
suspension of any licence consent or approval of or
registration with competent authority required for the
use of the Facilities or any of them for the Primary
Intended Use) under a business interruption insurance
policy covering risk of loss during reconstruction
necessitated by the occurrence of any of the Insured
Risks (but in no event for a period less than
<PAGE> 150
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3 years) in an amount sufficient to prevent the Lessor
and the Lessee from becoming a co-insurer. The
insurance required to be taken out under this clause
must fully respond to the loss incurred until return to
normal trading.
(c) Claims for personal injury or property damage under a
policy of commercial broadform general public liability
insurance with a combined single limit per occurrence
in respect of bodily injury and death and property
damage of $50 million, and an aggregate limitation of
$50 million, which insurance shall insure performance
by the Lessee of the indemnity provisions of Part 22 of
this Lease.
(d) Claims arising out of malpractice in an amount not less
than $20 million if obtainable on reasonable commercial
terms in the Australian insurance market for each
Person and for each occurrence.
INSURANCE DURING ALTERATIONS ETC
13.6 During such time as the Lessee is constructing any
alterations, improvements or additions to the Leased Property,
the Lessee, at its sole cost and expense, shall carry, or
cause to be carried:
(a workers' compensation insurance and employers'
liability insurance covering all persons employed in
connection with the same in statutory limits;
(b a completed operations endorsement to the commercial
general liability and property damage insurance
policies referred to above (endorsed to allow for
alterations and additions to the Lease Property up to
an amount of $1 million per contract);
(c builder's risk insurance, completed value form,
covering all physical loss, in an amount satisfactory
to the Lessor; and
(d a principal controlled contract works policy;
(e such other insurance, in such amounts, as the Lessor
reasonably deems necessary to protect the Lessor's
interest in the Leased Property from any act or
omission of the Lessee's contractors or subcontractors.
UMBRELLA COVERAGE
13.7 If the Lessee chooses to carry umbrella liability coverage to
obtain the limits of liability required under this Lease, all
such policies must cover in the same manner as the primary
commercial general liability policy and must contain no
additional exclusions or limitations materially different from
those of the primary policy.
<PAGE> 151
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IMPARTIAL APPRAISER
13.8 If the Lessor reasonably believes the Full Replacement Cost of
the Leased Property has increased at any time during the Term
of this Lease, it shall have the right to have such Full
Replacement Cost reasonably redetermined by the fire insurance
company which is then carrying the largest amount of fire
insurance carried on the Leased Property which may appoint for
such purpose an independent professional valuer (being a
member of no less than 5 years standing of the Australian
Institute of Valuers and Land Economists)("impartial
appraiser").
DETERMINATION OF IMPARTIAL APPRAISER
13.9 The determination of the impartial appraiser shall be final
and binding on the parties hereto, and the Lessee or the
Lessor (whichever shall insure) shall forthwith increase, but
not decrease, the amount of the insurance carried under this
Part 13, as the case may be, to the amount so determined by
the impartial appraiser, subject to the approval of the
Facility Mortgagee, as applicable. Each party shall pay
one-half of the fee, if any, of the impartial appraiser.
LESSOR TO PAY IN CERTAIN CIRCUMSTANCES
13.10 If the Lessor requires such a valuation more than once in
every 3 years the cost of any such second or subsequent
valuation shall be borne wholly by the Lessor.
ADDITIONAL INSURANCE
13.11 In addition to the insurance described above, the Lessee shall
maintain such additional insurance as may be required from
time to time by the Facility Mortgagee and shall at all times
maintain adequate employer's liability insurance coverage for
all persons employed by the Lessee on the Leased Property.
Such employer's liability insurance shall be in accordance
with the requirements of applicable Legal Requirements.
WAIVER OF SUBROGATION
13.12 All insurance policies carried by either party covering the
Leased Property, the Fixtures, the Facility, the Lessor's
Personal Property or the Lessee's Personal Property including
without limitation, contents, fire and third party liability
(including personal injury and damage to property) insurance,
shall expressly:
(a waive any right of subrogation on the part of the
insurer against the other party and shall be subject to
a condition that the interests of the Lessor and of any
Facility Mortgagee in such insurance shall not be
prejudiced by any act or negligence of the Lessee or
other occupier of any Leased Property whereby
<PAGE> 152
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the risk is increased without the authority or
knowledge of the Lessor or the Facility Mortgagee; and
(b provide that a breach of any condition of warranty of
the policy by any insured party shall not prejudice the
rights of the other insured parties to cover provided
by the insurance.
LESSOR ENTITLED TO RECOVERY
13.13 If requested by the Lessor and if available on a commercially
reasonable basis to the Lessee, all public liability and
property damage insurance shall contain a provision that the
Lessor, although named as an insured, shall nevertheless be
entitled to recovery under such policies for any loss, damage,
or injury to the Lessor, its servants, agents, and employees
by reason of the negligence of the Lessee or the Lessor. Each
insurer mentioned in this Part 13 shall agree, by endorsement
on the policy or policies issued by it, or by independent
instrument furnished to the Lessor, that it will give to the
Lessor (and to the Facility Mortgagee, if required) at least
30 days' written Notice before the policy or policies in
question shall be altered, allowed to expire, cancelled or
postponed.
NOTICE OF ACCEPTABLE LIMITS
13.14 If, from time to time after the date of this Lease, the Lessor
determines in the exercise of its reasonable business
judgement that the limits of the personal injury or property
damage - public liability insurance then carried are
insufficient, the Lessor may give the Lessee Notice of
acceptable limits for the insurance to be carried, and the
insurance shall be increased to limits as prescribed by the
Lessor until further increase under the provisions of this
clause.
BLOCK POLICY
13.15 Subject to the provisions of clause 13.1 the Lessee's or (if
the Lessor shall insure) the Lessor's obligations to carry the
insurance provided for herein may be brought within the
coverage of a so-called block policy or policies of insurance
carried and maintained by the Lessee or (as the case may be)
the Lessor subject to the coverage afforded to the Lessor and
the Lessee not being reduced or diminished or otherwise
materially different from that which would exist under a
separate policy meeting all other requirements of this Lease
by reason of the use of the block policy. The requirements of
this Part 13 (including satisfaction of the Facility
Mortgagee's and the approval of the Facility Mortgagee if
applicable) are otherwise satisfied, and that (if the Lessee
insures) the Lessee maintains specific allocations acceptable
to the Lessor.
<PAGE> 153
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NO SEPARATE INSURANCE
13.16 The Lessee shall not on the Lessee's own initiative or under
the request or requirement of any third party, take out
separate insurance concurrent in form or contributing in the
event of loss with that required in this Part 13, to be
furnished by, or which may reasonably be required to be
furnished by, the Lessee, or increase the amount of any then
existing insurance by securing an additional policy or
additional policies, unless all parties having an insurable
interest in the subject matter of the insurance, including in
all cases the Lessor and all Facility Mortgagees are included
as additional insureds, and the loss is payable under such
insurance in the same manner as losses are payable under this
Lease.
ADDITIONAL COVER
13.17 Nothing shall prohibit the Lessee from:
(a securing insurance required to be carried under this
Lease with higher limits of liability than required in
this Lease; or
(b from insuring against risks in addition to the Insured
Risks and as to such insurance, the Lessor and any
Facility Mortgagee need not be included as additional
insureds, nor must the loss be payable in the same
manner as losses are payable under this Lease except to
the extent required to avoid a default under the
Facility Mortgage or any other encumbrance. The Lessee
shall immediately notify the Lessor of the taking out
of any such separate insurance or of the increasing of
any of the amount of the then existing insurance.
PART 14 INSURANCE PROCEEDS
A. RISKS COVERED BY INSURANCE
PAYMENT OF PROCEEDS
14.1 All Net Proceeds shall be paid to the Lessor or the Lessee as
appropriate in accordance with the terms of this Lease and
applied as provided in this Lease.
<PAGE> 154
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NET PROCEEDS LESS THAN $250,000
14.2 If the Net Proceeds are less than $250,000, and, if no Event
of Default has occurred or if an Event of Default has occurred
and where capable of remedy has been remedied, the Net
Proceeds shall be paid directly to the Lessee and applied to
any restoration or repair, as the case may be, of any damage
to or destruction of the Leased Property, or any portion
thereof.
NET PROCEEDS EXCEED $250,000
14.3 If the Net Proceeds equal or exceed $250,000, and if no Event
of Default has occurred or if an Event of Default has occurred
and where capable of remedy has been remedied, the Net
Proceeds shall be paid to and held by the Lessor and made
available by the Lessor for restoration or repair, as the case
may be, of any damage to or destruction of the Leased
Property, or any portion thereof, as provided in clause 14.22.
This clause shall not be construed as imposing any obligation
on the Lessor to restore or repair any such damage or
destruction.
DISBURSEMENT OF NET PROCEEDS
14.4 Within 15 days after the receipt of the Net Proceeds, the
Lessor and the Lessee shall agree as to the portion
attributable to the Lessee's Personal Property (and failing
such agreement shall submit the matter to expert determination
under the provisions of this Lease) and those Net Proceeds
which the parties agree are payable by reason of any loss or
damage to any the Lessee's Personal Property shall be
disbursed in the manner specified in clause 14.14. The Lessor
shall pay any interest received (net of any deduction) to the
Lessee in respect of such money held on the basis referred to
at Part 10.
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TOTAL DESTRUCTION
14.5 If during the Term the Leased Property is totally damaged or
destroyed by an Insured Risk and a Facility or Facilities
thereby rendered totally Unsuitable for Its Primary Intended
Use ("Affected Property"), the Lessee shall give the Lessor
Notice of such damage or destruction within 5 Business Days of
the occurrence thereof. The Lessee shall, within 90 days of
the occurrence, either commence the restoration of the
Affected Property substantially to the same (or better)
condition as the condition of the Affected Property
immediately before the damage or destruction, and complete
such restoration with all diligence and within 12 months of
the occurrence, or offer in writing to purchase the Leased
Property from the Lessor on the terms set out in Part 18 for
the Repurchase Price of the Leased Property and (subject to
clause 14.7) such purchase must be completed within 12 months.
ACCOUNT FOR NET PROCEEDS
14.6 If such purchase is completed, the Lessor shall account to the
Lessee for any Net Proceeds received by the Lessor or any
Facility Mortgagee by crediting the same against the purchase
price of the Affected Property and by paying (if any) in cash
to the Lessee.
OFFER TO PURCHASE NOT ACCEPTED
14.7 If the Lessor does not accept the Lessee's offer to purchase
the Leased Property (within 10 days of its receipt thereof),
the Lessee shall within the 12 month time limit, restore the
Affected Property to substantially the same condition (or
better) as existed immediately before the damage or
destruction.
PARTIAL DESTRUCTION
14.8 If during the Term, a Facility is partially damaged or
destroyed by an Insured Risk but the Affected Property is not
thereby rendered Unsuitable for Its Primary Intended Use,
within 60 days after the occurrence, the Lessee shall commence
the restoration of and thereafter diligently restore the
Affected Property to substantially the same (or better)
condition as existed immediately before the damage or
destruction.
FAILURE BY LESSEE TO OBTAIN APPROVALS
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14.9 If the Lessee cannot within a reasonable time after diligent
efforts to do so obtain all necessary approvals, permits,
licenses, and certificates in order to be able to perform all
required repair and restoration work and to operate the
Affected Property for its Primary Intended Use in
substantially the same manner as that existing
immediately before the damage or destruction then, the Lessee
may offer to purchase the Affected Property from the Lessor
and the terms set out or referred to in clause 14.5 shall
apply.
B. RISKS NOT COVERED BY INSURANCE
RISK NOT COVERED
14.10 Except as provided in clause 14.18, if during the Term, the
Affected Property is totally or partially destroyed from a
risk not covered by the insurance described in Part 13, the
Lessee shall give the Lessor Notice of such damage or
destruction within 5 Business Days after the occurrence
thereof.
LESSEE TO HAVE OPTION WHERE RISKS NOT COVERED
14.11 Whether or not the damage or destruction renders the Affected
Property Unsuitable for Its Primary Intended Use, the Lessee
at its option shall either restore the Affected Property to
substantially the same (or better) condition than it was in
immediately before such damage or destruction (and the damage
or destruction shall not terminate this Lease) or will offer
in writing to purchase the Leased Property from the Lessor for
the Purchase Price in accordance with the provisions of
clauses 14.5 (and subject to the provisions of clause 14.7) on
the terms set out in Part 18 such purchase to the completed
within 180 days of the occurrence.
FAILURE TO ELECT
14.12 If the Lessee fails to make the election within 60 days after
the occurrence or if the Lessee elects not to restore within
such 60 day period then the Lessee shall be deemed to have
offered to purchase the Leased Property on the terms described
or referred to in this clause 14.
LESSEE ELECTS TO RESTORE
14.13 If the Lessee elects to restore the Affected Property and
fails to commence or complete the restoration within 1 year
after the occurrence then the Lessee shall be deemed to have
elected to purchase the Affected Property on such date and the
Lessor may accept such deemed election by serving Notice on
the Lessee within 10 days of such date and in such
circumstances the Lessee shall purchase the Affected
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Property within 14 months of the occurrence on the terms set
out in Part 18 (except that clause Payment of insurance
proceeds shall not apply). If the Lessor does not
accept such deemed election, the Lessee shall restore the
Affected Property as aforesaid within 18 months of the
occurrence.
C. EITHER CASE
PAYMENT OF INSURANCE PROCEEDS
14.14 All insurance proceeds payable by reason of any loss of or
damage to any of the Lessee's Personal Property shall be paid
to the Lessee, and the Lessee shall hold such insurance
proceeds and apply them to pay the cost of repairing or
replacing the damaged Lessee's Personal Property.
RESTORE ALTERATIONS ETC
14.15 If the Lessee is required or elects to restore the Affected
Property as provided in this Part 14, the Lessee shall also
restore all alterations and improvements made by the Lessee
and all of the Lessee's Personal Property and the Excluded
Personal Property. There shall be no obligation on the Lessee
under this clause to replace (or pay for the replacement of)
the Residents' Personal Property.
NO ABATEMENT OR TERMINATION
14.16 This Lease shall remain in full force and effect and the
Lessee's obligation to pay Rent and Outgoings and all other
charges required by this Lease shall remain unabated during
the Term including without limitation any period required for
repair and restoration.
PERMITTED SURRENDER
14.17 On a permitted surrender of a Leased Property in accordance
with the terms of this Lease (being on the completion of the
purchase of such Leased Property by the Lessee or the
compulsory purchase of such Leased Property) subject as
provided below the Rent shall be apportioned in accordance
with the proportions set out in Schedule 2 provided that the
rent apportioned to the Leased Property surrendered shall not
in any circumstance exceed the relevant Maximum Rent
Apportionment and the rent apportioned to the remaining Leased
Property shall not in any circumstance be less than the
Minimum Continuing Rent.
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DAMAGE NEAR END OF TERM - CANNOT BE REPAIRED
14.18 Notwithstanding any provision in this Part 14 to the contrary,
if damage to or destruction of the Affected Property occurs
during the last 12 months of the Term and if such damage or
destruction cannot be fully repaired and restored within 6
months immediately following the date of loss or such damage
or destruction renders the Affected Property Unsuitable for
Its Primary Intended Use (and before the terminating date of
this Lease), then the Lessee shall at the Lessee's election
forthwith either:
(a restore the Affected Property to substantially the same
(or better) condition as existed immediately before the
damage or destruction in which case the Lessor shall to
the extent not previously applied by the Lessor or any
Facility Mortgagee and provided that the Lessee is not
then in default pay any Net Proceeds to the Lessee
which the Lessee shall forthwith apply for such
purpose; or
(b not restore the Affected Property in which case the
Lessor shall retain any Net Proceeds and in such case
the Affected Property shall cease to be Leased Property
from the moment of such election.
DAMAGE NEAR END OF TERM - CAN BE REPAIRED
14.19 If such damage or destruction is not such as to render the
Affected Property Unsuitable for Its Primary Intended Use and
can be fully repaired and restored within such 6 month period
(and before the end of this Lease), the Lessee shall restore
the same to substantially the same (or better) condition as
existed immediately before the damage or destruction in which
case the Lessor shall subject to the other provisions of this
Part 14 pay any Net Proceeds to the Lessee, which the Lessee
shall apply for that purpose.
CEASING TO BE LEASED PROPERTY
14.20 Any Affected Property that the Lessee elects not to restore
under clause 14.18 shall cease to be Leased Property from the
moment of such election.
WAIVER
14.21 Except as expressly provided elsewhere in this Lease, the
Lessee hereby waives any statutory or common law rights of
termination (by way of frustration or otherwise) which may
arise by reason of any damage to or destruction of the
Facility.
PERFORMANCE OF RESTORATION
14.22 If the Lessee restores or repairs a Facility under this Part
14 and if the Net Proceeds
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equal or exceed $250,000, the restoration or repair shall be
performed in accordance with the following procedures:
(a The restoration or repair work shall be done under
plans and specifications and by the contractor approved
by the Lessor under Part 10.
(b The Net Proceeds shall be made available to the Lessee
as the restoration and repair work progresses under
certificates of an architect reasonably acceptable to
the Lessor, which certificates must be in form and
substance reasonably acceptable to the Lessor and
subject to a 10% retention (which may be in the form of
a bank guarantee).
(c The Lessee shall deliver to the Lessor such other
evidence as the Lessor may reasonably request, from
time to time, during the restoration and repair, as to
the progress of the work, compliance with the approved
plans and specifications, the cost of restoration and
repair and the total amount needed to complete the
restoration and repair.
(d The Lessee shall deliver to the Lessor such other
evidence as the Lessor may reasonably request, from
time to time, showing that there are no liens against
the Leased Property arising in connection with the
restoration and repair and that the cost of the
restoration and repair at least equals the total amount
of Net Proceeds then disbursed to the Lessee.
(e If the Net Proceeds are at any time determined by the
Lessor not to be adequate for completion of the
restoration and repair, the Lessee shall immediately
pay any deficiency to the Lessor to be held and
disbursed upon exhaustion of the Net Proceeds or
otherwise satisfy the Lessor that such funds are
available to the Lessee.
(f The Net Proceeds may be disbursed by the Lessor to the
Lessee or to the Person entitled to receive payment
thereof from the Lessee, and such disbursement in
either case may be made directly or through a third
party escrow agent, all as the Lessor may determine in
its sole discretion. Any excess Net Proceeds shall be
paid to the Lessee upon completion of the restoration
or repair. The Lessor will determine when the
restoration or repair has been completed.
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(g If the Lessee at any time fails to promptly and fully
perform the conditions and covenants set out in clauses
(a) to (f) above, and the failure is not corrected
within 10 days after written Notice thereof, or if
during the restoration or repair an Event of Default
occurs, the Lessor may, at its option, immediately
cease making any further payments to the Lessee for the
restoration and repair until such failure or Event of
Default is cured.
(h The contractor, architect and other professionals and
such subcontractors as the Lessor may determine shall
enter into deeds of warranty with the Lessor in respect
of the restoration or repair work such deeds to be
assignable by the Lessor and generally to be in such
terms as the Lessor may approve, acting reasonably.
FACILITY MORTGAGEE ENTITLEMENT
14.23 Notwithstanding anything in this Lease to the contrary, if any
Facility Mortgagee is entitled to any Net Proceeds, or any
portion thereof, under the terms of any Facility Mortgage, the
Net Proceeds shall be applied, held and/or disbursed in
accordance with the terms of the Facility Mortgage. If the
Facility Mortgagee elects to apply the Net Proceeds to the
indebtedness secured by the Facility Mortgage, the Lessee
shall not be required to restore the Affected Property and the
Rent shall be adjusted to the extent fair and equitable taking
into account the proportion of the Leased Property as a whole
represented by the Affected Property. Any reduction in Rent
under this clause shall not in any circumstance exceed the
relevant Maximum Rent Apportionment.
CEASING TO BE LEASED PROPERTY
14.24 Any Affected Property purchased by the Lessee shall cease to
be Leased Property and shall cease to be subject to this Lease
with effect from completion of purchase.
PART 15 COMPULSORY ACQUISITION
RIGHTS AND OBLIGATIONS
15.1 If during the Term there is any Taking of all or any part of
the Facility or any interest in this Lease by any Seizure
Matter, the rights and obligations of the parties shall be
determined by this Part 15.
<PAGE> 161
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TOTAL TAKING
15.2 If absolute title to the whole of the Leased Property is Taken
or compulsorily purchased by any Condemner, this Lease shall
cease and terminate as to the Leased Property as of the Date
of Taking by the Condemner.
NOTICE OF TERMINATION
15.3 If absolute title of any one of the Leased Property is so
Taken or compulsorily purchased, which nevertheless renders
such part of the Leased Property Unsuitable for Its Primary
Intended Use, the Lessee and the Lessor shall each have the
option by written Notice to the other, at any time before the
taking of possession by, or the date of vesting of title in,
the Condemner, whichever first occurs, to terminate this Lease
as to the relevant Facility as of the date so determined. Upon
the date so determined, if such Notice has been given, this
Lease shall thereupon cease and terminate as to the relevant
Facility only.
APPORTIONMENT OF RENT AND ADDITIONAL CHARGES
15.4 In either of such events under clauses 15.2 and 15.3, all Rent
and Additional Charges paid or payable by the Lessee under
this Lease applicable to the relevant Facility shall be
apportioned as of the termination date of this Lease. The Rent
apportioned to the relevant Facility in respect of which this
Lease is so terminated shall not in any circumstance exceed
the relevant Maximum Rent Apportionment and the Rent
apportioned to the remaining Facility or Facilities shall not
in any circumstance be less than the Minimum Continuing Rent.
In the event of any such termination, the provisions of clause
15.14 shall apply.
LESSOR ENTITLED TO AWARD
15.5 The total Seizure Matter Award made with respect to all or any
portion of the Facility or for loss of rent, or for loss of
business, shall be solely the property of and payable to the
Lessor. Nothing contained in this Lease will be deemed to
create any additional interest in the Lessee in respect of any
payment based on the value of the unexpired term or so-called
"residual value" to the Lessee of this Lease.
LESSEE ENTITLED TO AWARD FOR EXCLUDED PERSONAL PROPERTY
15.6 Any Award made for the taking of the Lessee's Personal
Property or for the Excluded Personal Property, or for removal
and relocation expenses of the Lessee in any such proceedings
shall be the sole property of and payable to the Lessee.
EACH PARTY TO SEEK AWARD
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15.7 In any Seizure Matter proceedings, the Lessor and the Lessee
shall each seek its own Award in conformity herewith, at its
own expense. Notwithstanding the foregoing, the Lessee may
pursue a claim for loss of its business, provided that such
claim will not diminish the recovery of the Lessor with
respect to the Facility.
PAYMENT BY LESSEE OF DEFICIENCY
15.8 Subject to clause 15.9, to the extent such Seizure Matter
Award made with respect to all or any portion of a Leased
Property and paid to the Lessor is less than the applicable
Repurchase Price the Lessee shall on demand pay the amount of
the deficiency to the Lessor.
PARTIAL TAKING
15.9 If absolute title to less than the whole of the Facility is so
Taken or acquired, all Rent and Additional Charges paid or
payable by the Lessee under this Lease shall continue to be
payable and the Lessee shall give the Lessor Notice of such
partial Taking or acquisition within 5 Business Days after the
occurrence thereof. If the Facility is still suitable for its
Primary Intended Use, or if the Lessee or the Lessor shall be
so entitled, but shall not elect to terminate this Lease as
provided in clause 15.3 hereof, the Lessee, at its own cost
and expense, shall with all reasonable dispatch restore the
untaken portion of the Leased Properties so that it shall
constitute a complete architectural unit of the same general
character and condition (as nearly as may be possible under
the circumstances) as the Leased Property existing immediately
before the Seizure Matter or Taking.
RESTORATION IF PARTIAL TAKING
15.10 The Lessee shall commence the restoration of the Leased
Properties within 60 days after the partial Taking or such (if
any) extension of time as may be agreed with the Lessor, and
shall complete the restoration within 180 days of such partial
Taking or such (if any) extension of time as may be agreed
with the Lessor. The Lessor shall contribute to the cost of
restoring such portion of the Award as is made therefor, if
any, together with relevant severance and other damages
awarded for Taken Leased Improvements; provided, however, the
amount of such contribution shall not exceed such cost.
AWARD LESS THAN $300,000
15.11 As long as no Event of Default has occurred hereunder, if the
Award is in an amount less than $300,000, the Lessor shall pay
the same to the Lessee upon completion of such restoration.
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AWARD EXCEEDS $300,000
15.12 As long as no Event of Default has occurred hereunder, if the
Award is in an amount more than $300,000, the Lessor shall
make the Award available to the Lessee in the same manner as
is provided in Part 14 for insurance proceeds in excess of
$300,000. The Rent shall not be reduced by reason of such
partial Taking. If the Lessee fails to make the election or if
the Lessee elects not to restore, or if the Lessee fails to
commence or complete the restoration within the time limits
specified in clause 15.10, then the Lessee shall be deemed to
have elected to purchase the Lessor's interest in the Facility
for the Repurchase Price.
PURCHASE OF FACILITY
15.13 The Lessee shall complete the purchase within 180 days after
the such partial Taking. In any such purchase, the Lessee
shall receive a credit for the portion of any Award retained
by the Lessor. The provisions of Schedule 6 shall apply to any
agreement for sale and purchase arising under this clause
15.13.
FACILITY MORTGAGEE ENTITLEMENT
15.14 Notwithstanding anything herein to the contrary, if any
Facility Mortgagee is entitled to any Compulsory Purchase
Awards, or any portion thereof, under the terms of any
Facility Mortgage such Awards shall be applied, held and/or
disbursed in accordance with the terms of the Facility
Mortgage. If the Facility Mortgagee elects to apply the Awards
to the indebtedness secured by the Facility Mortgage:
(a if the Award represents an Award for Partial Taking as
described in clause 15.9, the Lessee shall restore the
Facility (as nearly as possible under the
circumstances) to a complete architectural unit of the
same general character and condition as that of the
Facility existing immediately before such Taking; or
(b if the Award represents an award for a total Taking as
described in clause 15.3, the Lessee shall pay to the
Lessor an amount equal to the Repurchase Price and the
Lessor shall transfer its portion of the Award and its
interest in the Facility to the Lessee. In any such
restoration or purchase, the Lessee shall receive full
credit for any portion of any Award retained by the
Lessor and the Facility Mortgagee.
PART 16 EVENTS OF DEFAULT
EVENTS DEFINED
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16.1 The following events (and such other events so described in
this Lease) are each an "Event of Default" for the purpose of
this Lease:
(a) If the Lessee fails to pay Rent as required under this
Lease when the same becomes due and payable (whether
formally demanded or not) and such failure is not
remedied by the Lessee within a period of 5 days after
the due date for payment; or
(b) If a warranty, representation or statutory declaration
made of given by or on behalf of the Lessee or the
Guarantor in connection with this Lease or the
Transaction Documents is at any time found to be
materially incorrect or misleading; or
(c) any of the following occurs in respect of the Lessor or
Guarantor
(i an application is made, proceedings are
initiated or a meeting (whether of
shareholders, creditors or directors) is
called with a view to winding it or any part
of its undertaking up or placing it or any
part of its undertaking under administration;
(ii a receiver, liquidator or administrator is
appointed;
(iii a compromise or arrangement of the kind
referred to in part 5.1 of the Corporations
Law is proposed;
(iv an application is made or an action is
initiated with a view to cancelling its
registration or appointing an inspector or
other officer to investigate any of its
affairs under any legislation;
(v it is, or is or may be deemed within the
meaning of any applicable law to be, insolvent
or unable to pay its debts; or
(vi circumstances exist which would enable a court
upon application to order its winding up under
section 461 of the Corporations Law;
(d) If distress is levied or a judgement or order is
enforced or executed on or against any asset of the
Lessee or the Guarantor or any of those assets are
attached to answer any judgement debt;
(e) If any physical assets of the Lessee or the Guarantor
which are located at the Leased Property are
confiscated, cancelled or forfeited (except where the
Lessee or the Guarantor proves to the Lessor within 7
Business Days after such confiscation, cancellation or
forfeiture that such actions were unlawful or
improperly taken);
<PAGE> 165
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(f If the Lessee or the Guarantor stops payment of its
debts or ceases or threatens to cease to carry on any
of its businesses;
(g If a provision of this Lease does not or ceases to have
full effect to the Lessor's reasonable satisfaction;
(h If the holder of any security given at any time over
any assets of the Lessee or the Guarantor becomes
entitled to exercise any powers arising on default
pursuant to that security or otherwise take action to
enforce that security;
(i If a person who has provided credit or financial
accommodation to the Lessee or the Guarantor becomes
entitled to accelerate any obligation of the Lessee or
the Guarantor to pay money to that person;
(j If the Lessee or the Guarantor fails to comply with a
condition attaching to a consent or approval issued by
the Lessor in the context of this Lease and such
failure is not remedied by the Lessee within a period
of 5 days after the due date for compliance (or such
other date as agreed by the Lessor and the Lessee);
(k If in the Lessor's opinion there is any change in the
activities of the Lessee or the Guarantor which could
materially and adversely affect the ability of the
Lessee or the Guarantor to meet its obligations to the
Lessor; or
(l If without limiting the operation of any other Event of
Default, any other event occurs or circumstance arises,
financial or otherwise, which, in the reasonable
opinion of the Lessor, is likely to materially and
adversely affect the ability of the Lessee or the
Guarantor to meet its obligations under this Lease;or
(m If the estate or interest of the Lessee in the Leased
Property or any part thereof is levied upon or attached
in any proceeding or is distrained against and the same
is not vacated or discharged within the later of 30
days after commencement thereof (unless the Lessee is
in the process of contesting such lien or attachment or
distress in good faith in accordance with Part 12); or
(n If, except as a result of damage, destruction or a
partial or complete Seizure Matter, the Lessee
voluntarily ceases operations of any Facility for a
period in excess of 30 days without the consent of the
Lessor; or
(o If the Lessee (and/or, if applicable, a manager of any
Facility) has its Approval suspended, revoked or
terminated; or
(p If a sanction is imposed on the Lessee (including, but
not limited to, one
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suspending its right to operate any Facility or accept
patients) which, in the reasonable opinion of the
Lessor, is likely to materially and adversely affect
the ability of the Lessee or the Guarantor to meet its
obligations under this Lease; or
(q If the Lessee knowingly causes a default, under any
Facility Mortgage, the Transaction Documents, related
documents or obligations thereunder which default is
not remedied within the applicable time period; or
(r If a default or breach of any covenant or condition
occurs under or in relation to the Lease Guarantee or
any Group Lease; or
(s If the Lessee transfers, by means not expressly
provided for in and in accordance with this Lease, the
operational control or management of the Facility
(which expression shall not include a change of name of
any individual registered as the Person in charge of
the Facility provided the Lessee remains registered as
the operator)without the prior written consent of the
Lessor which consent may in the Lessor's absolute
discretion be withheld; or
(t A default occurs on the part of the Lessee under any
other material contract affecting the Facility or the
Lessee; or
(u A default occurs on the part of the Lessee under any of
the Transaction Documents; or
(v the Lessee fails to purchase a Facility in accordance
with any terms requiring such purchase under this
Lease; or
(w If the Lessee fails to observe or perform or is in
breach of any other term, covenant (other than those in
clauses 7.2, 7.3 or 7.4) condition (including
without limitation those in Part 8) binding upon the
Lessee in this Lease and the failure (where capable of
remedy) is not remedied by the Lessee within a period
of 30 days after Notice from the Lessor, unless the
failure (where capable of remedy) cannot with due
diligence be remedied within a period of 30 days, in
which case the failure shall not be deemed to continue
if the Lessee proceeds promptly and with due diligence
to remedy the failure and diligently completes the
remedying thereof and completes the remedy before the
time that the same causes a default in any Facility
Mortgage, the Transaction Documents or any other lease
to which the Lessee is subject and before the time that
the same results in civil or criminal penalties to the
Lessor, the Lessee or any Associated Companies in
connection with the Leased Property; or
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(x If the Lessee fails to observe or perform or is in
breach of any covenant in clause 7.2 or clause 7.3 or
clause 7.4; or
(y If the Lessee knowingly fails to maintain insurance
required by Part 13; or
(z If any Lease Guarantee is terminated, repudiated or
otherwise fails to be in full force and effect.
LESSOR'S RIGHTS ON DEFAULT
16.2 If an Event of Default occurs, then the Lessee shall be in
default under this Lease and the Lessor may lawfully in the
Lessor's absolute discretion:
(a enter the Leased Property or any part thereof in the
name of the whole and terminate this Lease and then
peaceably hold and enjoy the same as if this Lease had
not been made but without prejudice to any right of
action or remedy of the Lessor in respect of any
antecedent breach of any of the Lessee's covenants and
obligations in this Lease contained as provided in this
Lease, whereupon this Lease shall terminate and all
rights of the Lessee under this Lease shall cease (but
without prejudice to any right of action or remedy of
the Lessor in respect of any antecedent breach of any
of the Lessee's covenants and obligations in this Lease
contained); or
(b enter the part of the Leased Property in relation to
which the Lessee shall be in default under this Lease
and terminate this Lease as to such part only and then
peaceably hold and enjoy the same as if these presents
had never extended to such part but without prejudice
to:
(i any right of action or remedy of the Lessor in
respect of any antecedent breach of any of the
Lessee's covenants and obligations in this
Lease contained whereupon the Term shall
terminate as to such part of the Leased
Property only and all rights of the Lessee
under this Lease in respect of such part shall
cease;
(ii the continuation of this Lease and of the
Lessee's covenants and obligations in this
Lease in relation to the remainder of the
Leased Property which shall remain in full
force and effect. In addition, in any such case
the Lessor shall have all rights at law and in
equity available to the Lessor as a result of
the Lessee's breach of this Lease.
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LESSEE TO PAY ADDITIONAL CHARGES
16.3 The Lessee will, to the extent permitted by law, pay as
Additional Charges all costs and expenses incurred by or on
behalf of the Lessor, including, without limitation,
reasonable legal costs (whether or not litigation is
commenced, and if litigation is commenced, including fees and
expenses incurred in any litigation including appeals and
post-judgment proceedings) as a result of any default of the
Lessee under this Lease.
YIELD UP LEASED PREMISES
16.4 If an Event of Default has occurred, and whether or not this
Lease has been terminated under clause 16.1 or 16.2, the
Lessee shall, to the extent permitted by law, if required by
the Lessor so to do, immediately yield up to the Lessor the
Leased Property under the provisions of Part 9 and clause 16.1
or 16.2 and quit the same.
DAMAGES
16.5 If the Lessor terminates the Lease under this clause 16, the
Lessee shall pay to the Lessor all amounts outstanding as at
the date of such termination and all claims in respect of
existing breaches of covenant and/or condition plus (if the
Lessee shall not complete the purchase of the Leased Property
under clause 16.10) an amount ("Damages") to compensate the
Lessor for loss of Rent for the Balance of the Term (as
hereinafter defined) which shall be equal to the amount by
which the Present Value of future Rent exceeds the Present
Value of the highest of:
(a the amount actually received and receivable by the
Lessor as rent from reletting the Leased Property (or
any part thereof) for the Balance of the Term
(adjusted to take account of any substantial
differences between the terms of such reletting and the
terms of this Lease so far as the same would have
remained to be performed during the Balance of the Term
(but for the avoidance of doubt the terms on which the
Lessor may relet the Leased Property shall be in the
Lessor's absolute discretion)); or
(b the amount that the Lessor might reasonably be expected
to receive from reletting the Leased Property for the
Balance of the Term on terms substantially the same as
the terms of this Lease so far as the same would have
remained to be performed during the Balance of the Term
(but for the avoidance of doubt the terms on which the
Lessor may market the Leased Property and relet the
same shall be in the Lessor's absolute discretion).
Nothing in this clause 16.5 shall operate so as to relieve the
Lessor of its obligations
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to mitigate its loss.
FULL DISCHARGE
16.6 Payment of the Damages to the Lessor shall constitute a full
and final discharge of all the Lessee's liabilities to the
Lessor in relation to this Lease or the breach of
nonperformance thereof by the Lessee other than:
(a any liability for unpaid Rent or other sums owed to the
Lessor by the Lessee before the termination of this
Lease; and
(b in respect of any amount outstanding and all claims in
respect of other breaches of covenant and/or condition
outstanding as at the date of such termination.
DEFAULT OPTION
16.7 If an Event of Default (other than within clause 16.1) occurs
the Lessee shall have the option (the "Default Option") to
purchase the Leased Property on the terms of this Part 16.
LESSOR TO GIVE NOTICE
16.8 On the Lessor becoming aware of the occurrence of an Event of
Default (other than within clause 16.1) the Lessor may (but is
not obliged to) serve on the Lessee:
(a a Notice ("Default Notice") notifying the Lessee that
an Event of Default has occurred and that the right of
re-entry in Part 16 has become exercisable; or
(b a Notice ("Limited Waiver NoticE") stating that the
Lessor does not intend to rely on the Event of Default
which has occurred (and specifying the same) as a
ground for forfeiture and exercise any right of
forfeiture available to the Lessor in consequence of
that Event of Default.
DEFAULT OPTION
16.9 The Default Option shall be exercisable by the Lessee by
signing and returning a Notice in the form of the Option
Notice in Schedule 5 to this Lease (amended to refer to this
Part 16) ("Default Option Notice") within 14 Business Days of
receipt by the Lessee of the Default Notice and
contemporaneously giving a Default Option Notice under each
Supplemental Lease, each Group Lease and each Supplemental
Lease to such Group Lease.
PROVISIONS TO APPLY
16.10 The provisions of Part 18 of this Lease shall apply to the
exercise of the Default
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Option with the following variations:
(a "Completion Date" means within 3 calendar months after
the date of service by the Lessee on the Lessor of the
signed Default Option Notice.
(b The purchase price of the Leased Property shall be an
amount equal to the Repurchase Price plus all Rent then
due and payable and all other sums due under the terms
of this Lease from the Lessee to the Lessor as at the
date of completion of the purchase.
(c Any purchase by the Lessee of the Leased Property under
the exercise of the Default Option shall constitute a
full and complete discharge and satisfaction of all the
Lessee's liabilities under or in connection with this
Lease or the breach or nonperformance hereof.
(d The provisions of Schedule 6 shall apply to any
agreement for sale and purchase arising under this Part
16.
(e the Lessor shall not be obliged to complete the sale of
the freehold in part only nor to complete the sale
otherwise than contemporaneously with completion of the
sales under the corresponding provisions of each
Supplemental Lease.
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NOTICE TO LESSEE
16.11 The Lessor has the right within 14 Business Days after the
date of service on the Lessor by the Lessee of the Default
Option Notice to serve a further Notice in reply on the Lessee
(which itself must be served on the Lessee within 7 Business
Days) stating that the Lessor does not intend to rely on the
Event of Default which has occurred (and specifying the same)
as a ground for forfeiture and exercise any rights of
forfeiture available to the Lessor as a consequence and in
that event the exercise of the Default Option by the Lessee
shall become null and void of no effect. For the avoidance of
doubt, unless the Lessee shall complete the purchase of the
Leased Property, the Lessee is obliged to remedy the Event of
Default within the time period provided for such Event of
Default under this Lease.
LIMITED WAIVER NOTICE
16.12 The Lessor irrevocably confirms that if the Lessor serves a
Limited Waiver Notice on the Lessee, the Lessor will not be
entitled to rely in any respect whatsoever on the relevant
Event of Default as a ground for forfeiture of this Lease
which has occurred (without prejudice to the right of the
Lessor to rely on the future occurrence of such an Event of
Default at which time the procedures in this Part 16 would
then be repeated).
LESSEE'S OBLIGATIONS TO CONTINUE
16.13 The Lessee's obligations under this Part 16 shall continue in
full force and effect notwithstanding termination of this
Lease by the Lessor under this Part 16.
APPLICATION OF FUNDS
16.14 Any payments received by the Lessor under any of the
provisions of this Lease during the existence or continuance
of any Event of Default (and where such payment is made to the
Lessor rather than the Lessee due to the existence of an Event
of Default) shall be applied to the Lessee's obligations in
the order which the Lessor may determine.
LEGISLATION
16.15 The Lessor may terminate this Lease (and retain all of its
rights against the Lessee) if any legislation is passed or
anything else occurs which in the reasonable opinion of the
Lessor materially and adversely affects any of its rights
under this Lease.
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PART 17 LESSOR'S RIGHT TO REMEDY LESSEES DEFAULT
LESSOR'S RIGHTS
17.1 If the Lessee fails to make any payment or to perform any act
required to be made or performed under this Lease, and fails
to remedy the same within the relevant time periods provided
in clause 16.1, the Lessor, without further Notice to or
demand upon the Lessee, and without waiving or releasing any
obligation of the Lessee, and without waiving or releasing any
obligation or default, may (but shall be under no obligation
to) at any time thereafter make such payment or perform such
act for the account and at the expense of the Lessee, and may,
to the extent permitted by law, enter upon the Leased Property
for such purpose and take all such action thereon as, in the
Lessor's sole opinion, may be necessary or appropriate. Any
amounts payable by the Lessee under this clause must be paid
by the Lessee to the Lessor on demand and may be recovered by
the Lessor as a liquidated debt.
SHORT NOTICE
17.2 If the Lessor reasonably determines that the giving of such
Notice as is provided for in clause 17.1 would risk loss to
the Lessor or damage to the Leased Property, then the Lessor
will give such Notice as is practical under the circumstances.
No such entry shall be deemed forfeiture. All sums paid by the
Lessor and all costs and expenses (including, without
limitation, reasonable legal fees and expenses) incurred,
together with interest thereon (to the extent permitted by
law) at the Overdue Rate from the date on which such sums or
expenses are paid or incurred by the Lessor, shall be paid by
the Lessee to the Lessor on demand and may be recovered by the
Lessor as a liquidated debt. The obligations of the Lessee and
rights of the Lessor contained in this Part 17 shall survive
the expiration or earlier termination of this Lease.
PART 18 LESSEE'S OPTION TO PURCHASE LEASED PROPERTY
PURCHASE BY LESSEE
18.1 If the Lessee purchases the Leased Property from the Lessor
under any of the terms of this Lease, the Lessor shall, upon
receipt from the Lessee of the applicable purchase price,
together with full payment of any unpaid Rent due and payable
with respect to any period (prorated on a daily basis, if
appropriate) ending on or before the date of the purchase,
deliver to the Lessee a transfer together with all other
relevant title deeds transferring the entire interest of the
Lessor in and to the Leased Property to the Lessee free and
clear of all Encumbrances other than:
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(a) Permitted Encumbrances:
(b) Encumbrances (not being in respect of Debt or other
indebtedness of the Lessor or any Associated Company of
the Lessor) consented to by the Lessee during the Term;
and
(c) other Encumbrances created during the Term in operation
of the law that do not relate to Debt or indebtedness
of the Lessor or any Associated Company of the Lessor.
All expenses of such conveyance or transfer, including,
without limitation, legal costs incurred by the Lessor
in connection with the transfer, stamp duty and land
registration fees shall be borne by the Lessee.
EXPENSES
18.2 If the Lessee shall purchase the Leased Property from the
Lessor under any of the terms of this Lease the Lessee shall
in addition to the Purchase Price also pay all reasonable
expenses, disbursements and legal fees incurred by the Lessor
in the sale transaction.
SALE SUBJECT TO CHARGES ETC
18.3 In the event of a sale by the Lessor to the Lessee under any
of the terms of this Lease then (subject to any provision to
the contrary in any Notice of Terms as referred to in this
Part 18) the Lessor shall sell subject to any charges,
incumbrances and other third party rights created, granted or
imposed after the date of this Lease (other than by or in
respect of Debts or other indebtedness of the Lessor or any
Associated Company of the Lessor).
SURVIVAL OF RIGHTS
18.4 The obligations and rights of the Lessor and the Lessee
contained in this Part 18 shall survive the expiration or
earlier termination of this Lease.
EXERCISE
18.5 The election referred to in Part 14 shall be exercisable by
the Lessee by signing and serving on the Lessor a Notice in
the terms of the Option Notice.
EFFECT OF SERVICE
18.6 Service by the Lessee of an Option Notice if accepted by the
Lessor as provided for in Part 14 shall constitute a binding
contract whereby the Lessor shall sell and the Lessee shall
purchase the Leased Property but subject to the matters (if
any) set out in Schedule 3 and as mentioned in clause 18.1.
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NO PART SALE ONLY
18.7 The Lessor shall not be obliged to complete the sale of the
Leased Property in part only.
SALE PROVISIONS
18.8 The provisions of Schedule 6 shall apply to any agreement for
sale and purchase arising upon the exercise of the election
referred to in Part 14.
PART 19 INDEMNITY
19.1 If the Lessee fails to yield up the Leased Property in a
timely manner and in accordance with the provisions hereof
upon the expiration or termination of this Lease, in addition
to any other liabilities to the Lessor accruing therefrom, the
Lessee shall indemnify and hold the Lessor, its principals,
officers, directors, agents and employees harmless from loss
or liability resulting from such failure, including, without
limiting the generality of the foregoing, loss of rental with
respect to any new lease in which the rental payable
thereunder is less than any rental paid by the Lessee under
this Lease and any claims against the Lessor by any proposed
new tenant founded on such failure. The provisions of this
Part 19 shall survive the expiration or termination of this
Lease.
PART 20 LESSEE'S CERTIFICATE
LESSEE INDEMNIFIES
20.1 The Lessee agrees, upon not less than 10 days' prior Notice by
the Lessor to execute, acknowledge and deliver to the Lessor
the Lessee's Certificate. The Lessee warrants that any
Lessee's Certificate may be relied upon by the Lessor, any
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prospective tenant or purchaser of the Leased Property, any
mortgage or prospective mortgagee, or by any other party who
may reasonably rely on the Lessee's Certificate (as if that
Person was named in the Lessee's Certificate).
STATEMENT
20.2 The Lessee's failure to deliver the Lessee's Certificate
within such time shall constitute an Event of Default. In
addition, it shall constitute the Lessor's authority to
execute and deliver a certificate to the effect that the
Lessee represents and warrants that:
(a) this Lease is in full force and effect without
modification;
(b) the Lessor is not in breach or default of any of its
obligations under this Lease.
LESSOR'S CERTIFICATE
20.3 The Lessor shall provide and deliver to the Lessee an
equivalent certificate (mutatis mutandis) to the Lessee's
Certificate referred to in clause 20.1 and on the same terms
and conditions as set out in such clause. The Lessor shall
also from time to time deliver to the Lessee at the Lessee's
request a receipt for the most recently paid instalment of
Rent.
PART 21 RISK OF LOSS
21.1 During the Term of this Lease, the risk of loss or of decrease
in the enjoyment and beneficial use of the Leased Property in
consequence of the damage or destruction by fire, the
elements, casualties, thefts, riots, wars terrorist activity
or otherwise, or in consequence of foreclosures, attachments,
levies or executions (other than those caused by the Lessor
and those claiming from, through or under the Lessor) is
assumed by the Lessee, and the Lessor shall in no event be
answerable or accountable for such damage or destruction nor
shall any of the events mentioned in this clause entitle the
Lessee to any abatement of Rent under this Lease except as
expressly provided in this Lease.
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PART 22 INDEMNITIES AND WAIVER OF WARRANTIES
LESSOR UNDER NO LIABILITY
22.1 It is agreed between the parties, as a fundamental basis on
which this Lease is being entered into by the Lessor, that to
the maximum extent possible the Lessor should be under no
liability (other than under the Lessor's express obligations
under this Lease or under any Facility Mortgage or under the
other Transaction Documents) in respect of the Leased Property
or the subsequent sale or dismantling, removal and disposal of
the Leased Property and the Lessee hereby indemnifies the
Lessor and any mortgagee and shall keep each indemnified as
set out in this Part 22.
LESSEE INDEMNITY
22.2 To the fullest extent permitted by law, the Lessee agrees to
protect, indemnify, defend and save harmless the Lessor, its
directors, officers, shareholders, agents and employees from
and against any and all foreseeable or unforeseeable
liability, expense, loss, costs, deficiency, fine, penalty, or
damage, (including without limitation punitive or
consequential damages) of any kind or nature, including proper
legal costs from any suits, claims or demands, on account of
any matter or thing, action or failure to act arising out of
or in connection with:
(a) the Lease (including without limitation, the breach by
the Lessee of any of its obligations under the Lease);
or
(b) the Properties; or
(c) the operations (of the Lessee or otherwise) on the
Properties, including without limitation all Hazardous
Substances on the Properties all claims in respect of
contamination or any violation by the Lessee of
Environmental Laws with respect to the Properties
whether any such claims are caused by the acts or
omissions of the Lessee or not, and whether they arise
or are caused during the Term of this Lease, before the
commencement of this Lease or after this Lease is
terminated.
NOTICE OF SUIT ETC
22.3 Upon receiving knowledge of any suit, claim or demand asserted
by a third party that either party believes is covered by this
indemnity, either party shall give the other Notice of this
matter. The Lessee shall defend the Lessor against such matter
at the Lessee's sole cost and expense with lawyers (including
barristers) reasonably satisfactory to the Lessor and approved
by the Lessee, which approval shall not be unreasonably
withheld or delayed.
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CONTINUING INDEMNITY
22.4 The indemnity contained in this clause shall continue in full
force and effect notwithstanding the determination or expiry
of this Lease.
LESSOR NOT LIABLE
22.5 The Lessor shall not be liable to the Lessee (and the Lessee
hereby waives any claim it might otherwise have against the
Lessor) for any loss, liability claim or proceedings in
respect of any injury loss or damage of whatsoever nature and
howsoever caused arising directly or indirectly out of or in
connection with the Leased Properties their design,
construction, repair, rebuilding, occupation, use, operation,
lease, sublease or ownership or any related works or any
defects or other matters contained in or referred to in the
Certificates of Title for the Leased Properties or in respect
of any other matter or indemnity which is an obligation of the
Lessee under this Lease. This clause shall not apply to any
loss, liability claim or proceedings in respect of any injury
loss or damage resulting from the gross negligence or wilful
misconduct of the Lessor, its officers agents or employees.
NO REPRESENTATIONS ETC
22.6 The Lessor shall be deemed not to have made any representation
or warranty either express or implied to the Lessee as to the
value, design, operation or condition or the quality,
durability, suitability, merchantability or fitness for any
purpose of the Leased Property or any part of the Leased
Property or as to the Lessor's title thereto or as to any
matter relating to the Leased Property or any part of the
Leased Property. Except as otherwise provided, all such
matters shall be at the sole risk of the Lessee and the
benefits of any and all implied warranties and representations
on the part of the Lessor are (to the maximum extent permitted
by law) hereby expressly excluded by the Lessor and waived by
the Lessee.
WARRANTY BY LESSEE
22.7 The Lessee warrants that in entering into this Lease, the
Lessee has not relied on any representation or warranty by any
Person, except those expressly stated in this Lease.
PART 23 SUBLETTING AND ASSIGNMENT
NO ASSIGNMENT
23.1 Subject to clause 23.2, during the continuance of this Lease,
in respect of whole or
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part of this Lease or the Leased Property, the Lessee shall
not:
(a) assign, transfer, sublet, deal with, hold on trust, or
grant any interest in, this Lease;
(b) part with possession of whole or any part of the Leased
Property;
(c) (except where necessary to carry out the Primary
Intended Use) grant any licence, or share the right of
occupation or possession, in respect of whole or part
of the Leased Property .
NO PARTING WITH POSSESSION
23.2 The Lessee covenants not to part with possession or share the
occupation of the whole or any part or parts of the Leased
Property or permit any Person to occupy the Leased Property
except by way of proper delegation of operational control and
management of the Facility to an Associated Company in a
manner which does not create or constitute the relationship of
landlord and tenant. In the case of such delegation the Lessee
shall remain in control of the Leased Property for the
purposes of this Lease and the Essential Legislation.
DERIVATIVE INTERESTS
23.3 The Lessee covenants from time to time on demand during the
Term to give the Lessor full particulars of all derivative
interests of or in the Leased Property or any part thereof
irrespective of how remote or inferior including particulars
of the rent or rents payable in respect of such derivative
interests and such further particulars as the Lessor may
reasonably require..
PHARMACY ETC
23.4 Nothing herein shall restrict the Lessee from permitting any
Associated Company of the Lessee or of the Guarantor to
operate a pharmacy, therapy department or other ancillary
service department within any Facility subject to the
relationship of landlord and tenant not thereby arising.
PART 24 OFFICERS CERTIFICATES, FINANCIAL STATEMENTS
CERTIFICATES
24.1 The Lessee will furnish and will cause the Guarantor to
furnish the following statements to the Lessor:
(a) within 120 days after the end of each of the Lessee's
accounting years, and
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together with the Accounts furnished in accordance with
clause 24.1(c) and any Lease Guarantee:
(i) an Officer's Certificate of the Lessee stating
that the Lessee is not in default in the
performance or observance of any of the terms
of this Lease, or if the Lessee is in default,
specifying all such defaults, the nature
thereof, and the steps being taken to remedy
the same; and
(ii) a certificate from a qualified, certified
public accountant acceptable to the Lessor
that nothing came to their attention during
the course of their audit of the Lessee's
Accounts that would cause them to believe that
there was any default under Part 8 of this
Lease;
(iii) a reconciliation statement prepared by the
same person referred to in clause 24.1(a)(ii)
reconciling the Accounts to the generally
accepted accounting principles of Australia
for the preparation of financial statements.
(b) within 25 days after the end of each month, monthly
financial reports for each Facility with detailed
statements of income Turnover and detailed operational
statistics regarding occupancy rates, patient mix and
patient rates by type for each Facility and if
requested by the Lessor such other information or
evidence as the Lessor shall require to satisfy the
Lessor that such statements and statistics are correct
and such information or evidence shall be supplied as
soon as practicable by the Lessee and in any event
within 30 days after request;
(c) within 15 days after they are required (or are signed
if sooner) copies of any audited annual or quarterly
report and/or Accounts which the Lessee or the
Guarantor is or are required by law to prepare or do
prepare;
(d) within 30 days after receipt thereof, copies of surveys
of reports undertaken by the appropriate governmental
authorities for licensing or certification or
registration purposes, and any plan of correction
submitted by the Lessee for the Facility and will give
immediate Notice to the Lessor of any action, proposal
or investigation by any agency or entity, or complaint
to such agency or entity, (any of which is called a
"Proceeding"), known to the Lessee, the result of which
Proceeding is intended to:
(i) revoke or suspend or terminate or modify in a
way adverse to the Lessee, or fails to renew
or fully continue in effect, any licence,
registration or certificate or operating
authority under which the Lessee operates any
facility in accordance with its Primary
Intended Use; or
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(ii) suspend, terminate, adversely modify, or seek
return of or reimbursement for any material
previously advanced or paid; or
(iii) impose any limitation on patient admission or
similar restriction on any Facility; or
(iv) prosecute any party with respect to the
operation of any activity at any Facility or
enjoin any party or seek any civil penalty in
excess of $1,500 in respect thereof;
(e) as soon as they are prepared in each Lease Year,
capital and operating budgets for each Facility; and
(f) with reasonable promptness, such other information
respecting the financial condition and affairs of the
Lessee and each Facility as the Lessor may reasonably
request from time to time including, without
limitation, any such other information as may be
available to the administration of the Leased Property.
PUBLIC OFFERING
24.2 In connection with the public offering of any securities
issued or to be issued by the Lessor and/or compliance with
applicable securities law, the Lessee shall, upon the Lessor's
reasonable request, provide the Lessor at the Lessor's sole
cost and expense (to the extent the Lessee incurs cost in
addition to those it would in any event have been obliged to
incur) with such audited financial information concerning the
Lessee or the Facilities as the Lessor may be required by law
to include in its public filings. The Lessee shall not have,
and the Lessor shall indemnify fully and hold the Lessee
harmless against, any liability to the Lessor or any third
party in
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connection with the Lessor's use thereof other than liability
resulting from the gross negligence or wilful misconduct of
the Lessee, its officers agents or employees in the
preparation thereof.
PART 25 LESSOR'S RIGHT TO INSPECT
25.1 The Lessee shall:
(a) permit the Lessor and its authorised representatives to
inspect the Leased Property during usual business hours
on reasonable prior notice (save in the case of an
emergency) the Lessor ensuring there is no undue
disturbance to the operation of the Facility;
(b) pay the Lessor a fee of $1,000 per Facility per annum
in respect of the inspection carried out by or on
behalf of the Lessor under clause 25.1(a) (whether or
not the same shall actually be carried out).
PART 26 NO WAIVER
26.1 No failure by the Lessor to insist upon the strict performance
of any term of this Lease or to exercise any right, power or
remedy consequent upon a breach of this Lease, and no
acceptance of full or partial payment of Rent during the
continuance of any such breach, shall constitute a waiver of
any such breach or of any such term. No waiver of any breach
shall affect or alter this Lease, which shall continue in full
force and effect with respect to any other then existing or
subsequent breach.
PART 27 REMEDIES CUMULATIVE
27.1 To the extent permitted by law, each legal, equitable or
contractual right, power and remedy of the Lessor now or in
the future provided either in this Lease or by statute or
otherwise shall be cumulative and concurrent and shall be in
addition to every other right, power and remedy and the
exercise or beginning of the exercise by the Lessor of any one
or more of such rights, powers and remedies shall not preclude
the simultaneous or subsequent exercise by the Lessor of any
or all of such other rights, powers and remedies.
PART 28 ACCEPTANCE OF SURRENDER
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28.1 No surrender to the Lessor of this Lease or of the Leased
Property or any part, or of any interest, shall be valid or
effective unless agreed to and accepted in writing by the
Lessor, and no act by the Lessor or any representative or
agent of the Lessor, other than such a written acceptance by
the Lessor, shall constitute an acceptance of any such
surrender.
PART 29 NO MERGER OF TITLE, NO PARTNERSHIP
NO MERGER
29.1 There shall be no merger of this Lease or of the leasehold
estate created by the Lease by reason of the fact that the
same Person, firm, corporation or other entity may acquire,
own or hold, directly or indirectly:
(a) this Lease or the leasehold estate created by this
Lease or any interest in this Lease or such leasehold
estate; and
(b) the freehold of the Leased Property.
NO PARTNERSHIP
29.2 Nothing contained in this Lease will be deemed or construed to
create a partnership or joint venture between the Lessor and
the Lessee or to cause either party to be responsible in any
way for the debts or obligations of the other or any other
party, it being the intention of the parties that the only
relationship under this Lease is that of the Lessor and the
Lessee.
PART 30 QUIET ENJOYMENT & ADDITIONAL RIGHTS
QUIET ENJOYMENT
30.1 The Lessor covenants with the Lessee that so long as the
Lessee pays all Rent as it becomes due and complies with all
of the terms of this Lease and performs its obligations under
this Lease, the Lessee shall peaceably and quietly have, hold
and enjoy the Leased Property for the Term, free of any claim
or other action by the
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Lessor or anyone claiming by, through or under the Lessor, but
subject to all Title Documents and Permitted Encumbrances
provided for in this Lease or consented to by the Lessee and
any claims made in respect of the Excluded Personal Property.
FAILURE BY LESSOR NOT TO GIVE LESSEE RIGHTS
30.2 Except as otherwise provided in this Lease, no failure by the
Lessor to comply with the foregoing covenant will give the
Lessee any right to cancel or terminate this Lease or abate,
reduce counter claim or make a deduction from or set off
against the Rent or any other sum payable under this Lease, or
to fail to perform any other obligation of the Lessee. The
Lessee shall have the right, by separate and independent
action, to pursue any claim it may have against the Lessor as
a result of a breach by the Lessor of the covenant of quiet
enjoyment contained in this Part.
LESSOR TO COMPLY
30.3 The Lessor covenants to comply with the Lessor's obligations
in this Lease.
ADDITIONAL RIGHTS GRANTED
30.4 Subject to clause 30.5, the Lessor grants to the Lessee the
right for the Lessee and those lawfully authorised by it (in
common with the Lessor and all other persons from time to time
entitled and to the extent the Lessor may lawfully grant the
same) to use all rights and easements to the Leased Property.
RIGHTS RESERVED TO THE LESSOR
30.5 There are excepted and reserved out of this demise all rights
and privileges enjoyed over or against the Leased Property and
the particular rights following namely:
Entry upon the Leased Property
(a) The right at any time during the Term but (except in
emergency) only after giving reasonable prior notice to
the Lessee to enter (or in emergency during the
Lessee's absence to break and enter) upon the Leased
Property in order:
(i) to view the condition of the Leased Property
(and to open floors and other parts of the
Leased Property where required in order to
view) and to take inventories of the Fixtures,
the Lessor's Personal Property and the
Lessee's Personal Property and things to be
yielded up at the determination of the Term;
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(ii) for any purpose connected with valuing or
disposing of any interest of the Lessor in the
Leased Property; and
(iii) doing anything necessary to prevent the
forfeiture of any superior lease affecting the
Leased Property.
(b) Subject (in each case) to the Person exercising any
such right causing as little damage and inconvenience
as practicable and making good all physical damage
thereby caused to the Leased Property but without any
liability to pay compensation.
Conduits
(c) The right to free passage and running of water, surface
water, sewage, drainage, gas, electricity,
telecommunications and other services or supplies to or
from any adjacent premises in and through any of the
Conduits which may at any time be in, under or passing
through or over the Leased Property.
SUPERIOR LEASES
30.6 In respect of Superior Leases entered into after the date of
this Lease, the Lessee shall only be required to comply with a
covenant in such Superior Leases to the extent that such
covenants are no more onerous that the existing covenants
contained in this Lease.
PART 31 NOTICES
WRITTEN NOTICE
31.1 All Notices under this Lease shall be in writing and
personally served upon a Director of the party being served or
mailed (by registered or recorded delivery mail), or by hand
or by facsimile transmission addressed to the respective
parties, as follows:
(i) if to the Lessee: Moran Health Care (Australia) Pty Ltd
13 - 15 Bridge St
Sydney NSW 2000
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(ii) if to the Lessor: Premier Care Australia Pty Limited
c/- Phillips Fox
255 Elizabeth Street
SYDNEY NSW 2000
with a copy to: Omega Worldwide Inc
905 West Eisenhower Circle
Suite 110
Ann Arbor MI 48103
USA
and to: Omega (UK) Limited
145 Cannon Street
London EC4N 5BP
or to such other address as either party may in future
designate.
DEEMED GIVEN
31.2 Notice shall be deemed to have been given on the date of
delivery if such delivery is made on a Business Day, or if
not, on the first Business Day after delivery, or if delivery
is refused, on the date delivery was first attempted.
FACSIMILE
31.3 A Notice sent by facsimile transmission shall be deemed given
upon receipt of confirmation by the sender from the recipient
that such Notice was received.
LESSEE VACATED
31.4 If the Lessee has vacated the Leased Property, the Lessor's
Notice may be posted on the door of the Leased Property. For
the purposes of this Part, the term "Director" shall mean the
Chairman of the Board of Directors, the President, any Vice
President and the Secretary of any corporation and general
partner of any partnership upon which service is to be made.
FAILURE TO SERVE
31.5 The failure of the Lessor to serve a copy of any Notice served
on the Lessee on the
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Guarantor shall not affect the validity of such Notice served
on the Lessee.
PART 32 INTERPRETATION
ALL FACILITIES
32.1 All the provisions in this Lease relating to the calculation
and payment of Rent and relating to the calculation and
payment for the purchase by the Lessee of the Leased Property
have been written on the basis that the Leased Property will
comprise all the Facilities throughout the Term.
REDUCTION IN CERTAIN CIRCUMSTANCES
32.2 If any Facility shall not at any time form part of the Leased
Property (whether because the Lessor has not yet completed its
purchase or because the same has ceased to be part of the
Leased Property by reason of the provisions of Part 14 or 15)
the Rent for the relevant time and the purchase price of the
Leased Property shall be reduced on a pro rata basis by
reference to the allocation of Purchase Price and Rent among
the facilities contained in Schedule 2.
PART 33 RENT ADJUSTMENT
33.1 Upon a Leased Property ceasing to be a Leased Property then
provided that any capital sum as shall be due to the Lessor
has been paid in full (whether due from the Lessee an Insurer
a Condemner (as defined in Schedule One) or any other third
party) the Rent shall be reduced by such amount as shall be
fair and equitable having regard to all relevant factors
including without limitation the number of Beds affected by
the relevant event compared to the total number of Beds at all
the Leased Properties.
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PART 34 BREACH BY LESSOR
LESSOR NOT IN BREACH
34.1 The Lessor shall not be in breach of this Lease unless the
Lessor fails to observe or perform any term, covenant or
condition of this Lease on its part to be performed and such
failure continues for a period of 30 days after written Notice
specifying such failure and the necessary curative action is
received by the Lessor from the Lessee.
CONTINUING FAILURE
34.2 If the failure cannot with due diligence be cured within a
period of 30 days, the failure shall not be deemed to continue
if the Lessor, within the 30 day period, proceeds promptly and
with due diligence to cure the failure and diligently
completes the curing thereof. The time within which the Lessor
shall be obligated to cure any such failure shall also be
subject to extension of time due to the occurrence of any
Unavoidable Delay.
PART 35 FACILITY MORTGAGEE CONSENT
35.1 The Lessor shall ensure that the terms of each Facility
Mortgage shall oblige the Facility Mortgagee to grant its
consent or approval to any matter in respect of which the
Lessor is obliged to grant its consent or approval under the
terms of this Lease and the Lessor shall at the request and
cost of the Lessee:
(a) apply for each such consent or approval as may from
time to time be required by the Lessee; and
(b) enforce at the Lessee's cost the Facility Mortgagee's
obligations with regard to the granting of any such
consent or approval.
PART 36 EXPERT DETERMINATION
36.1 With respect to any financial calculations under this Lease,
but not further or otherwise in case any controversy arises
between the parties hereto as to any of the requirements of
this Lease or the performance thereof, and the parties are
unable to settle the controversy by agreement or as otherwise
provided herein, the controversy shall be referred to an
independent chartered accountant acting as expert not
arbitrator whose decision shall be final and binding upon the
parties (save as to matters of law).
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36.2 Such chartered accountant shall be nominated by agreement
between the parties or in default of such agreement by the
President for the time being of the Australian Institute of
Chartered Accountants on the application of either the Lessor
or the Lessee.
PART 37 MISCELLANEOUS
37.1 Notwithstanding anything contained in this Lease, all claims
against and liabilities of the Lessee or the Lessor arising
before any date of termination of this Lease shall survive
such termination.
37.2 If any term or provision of this Lease or any application
thereof is held invalid or unenforceable, the remainder of
this Lease and any other application of such term or
provisions shall not be affected.
37.3 If any late charges provided for in any provision of this
Lease are based upon a rate in excess of the maximum rate
permitted by applicable law, the parties agree that such
charges shall be fixed at the maximum permissible rate.
37.4 Neither this Lease nor any provision hereof may be changed,
waived, discharged or terminated except by a deed or agreement
in writing signed (in either case) by the Lessor and the
Lessee.
37.5 All the terms and provisions of this Lease shall be binding
upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
37.6 The headings in this Lease are for convenience of reference
only and shall not limit or otherwise affect the meaning
hereof.
37.7 This Lease shall be governed by and construed in accordance
with the laws of New South Wales.
37.8 The Lessee agrees that service of proceedings may be effected
upon it under any method permissible under the laws of New
South Wales and irrevocably waives any objection to such
jurisdiction.
37.9 The Lessee agrees to look solely to the Lessor's interest in
the Leased Property for recovery of any judgment from the
Lessor, and no constituent shareholder or officer of the
Lessor shall ever be personally liable for any such judgment
or for the payment of any monetary obligation to the Lessee.
The Lessor (original or successor) shall not ever be liable to
the Lessee for any indirect or consequential damages suffered
by the Lessee from whatever cause.
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37.10 The Lessee waives any defence by reason of any disability of
the Lessee, and waives any other defence based on the
termination of the Lessee's (including any the Lessee's
successor's) liability from any cause. The Lessee waives all
demands for performance, notices of nonperformance, protests,
notices of protest, notices of dishonour, and notices of
acceptance, and waives all notices of the existence, creation,
or incurring of new or additional obligations.
37.11 Whenever the consent or approval of the Lessor is required
under this Lease, the Lessor may in its sole discretion and
without reason withhold that consent or approval unless
otherwise specifically provided.
37.12 The purchase options granted to the Lessee in this Lease are
granted solely to the Lessee and are not assignable or
transferable except in connection with a permitted transfer or
assignment of this Lease and to the same transferee or
assignee. Any attempt otherwise to assign or transfer such
options (or any of them) shall be void and of no force and
effect.
37.13 Except as provided in to the contrary, the respective rights
and remedies of the parties specified in this Lease shall be
cumulative and in addition to any rights and remedies not
specified in this Lease.
37.14 There are no oral or written agreements or representations
between the parties affecting this Lease. This Lease
supersedes and cancels any and all previous negotiations,
arrangements, representations, brochures, agreements and
understandings, if any, between the Lessor and the Lessee.
37.15 If any provision of this Lease or the application of such
provision to any Person, entity or circumstance is found
invalid or unenforceable by a court of competent jurisdiction,
such determination shall not affect the other provisions of
this Lease and all other provisions of this Lease shall be
deemed valid and enforceable.
37.16 All rights and obligations of the Lessor and the Lessee under
this Lease shall extend to and bind the respective heirs,
executors, administrators and the permitted concessionaires,
successors, subtenants and assignees of the parties. If there
is more than one Lessee hereunder, each shall be bound jointly
and severally by the terms, covenants and agreements contained
in this Lease.
37.17 Except for the delivery of possession of the Facility to the
Lessee, time is of the essence of all provisions of this Lease
of which time is an element.
37.18 The Lessee shall:
(a) on demand pay to the Lessor all proper and reasonable
costs, charges and expenses (including lawyers' costs
and disbursements, surveyors' and other
<PAGE> 190
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professional fees together with the reasonable
administrative charges of the Lessor) incurred by the
Lessor in relation to the preparation and service of a
notice under Section 4 of the Conveyancing Act 1919
requiring the Lessee to remedy a breach of any of the
covenants or conditions contained in this Lease and on
the part of the Lessee to be observed or performed
(notwithstanding forfeiture for such breach shall be
avoided otherwise than by relief granted by the Court);
(b) on demand to pay to the Lessor (and on a full indemnity
basis) all costs, charges and expenses, reasonably
incurred or suffered by the Lessor (including lawyers'
costs and disbursements, surveyors' and other
professional fees, the reasonable administrative
charges of the Lessor and any costs and fees payable to
any Superior the Lessor) in connection with:
(i) the grant by the Lessor of any consent or
approval under the covenants and conditions
contained in this Lease or the grant by any
superior the Lessor of any consent or approval
under the covenants and conditions contained
in any superior lease or any application for
any such consent or approval;
(ii) any request by the Lessee in relation to the
Leased Property (including the approval of
drawings and specifications and the inspection
or supervision of works by or on behalf of the
Lessor or any Superior the Lessor); and
(iii) any breach of the covenants on the part of the
Lessee or the conditions contained in this
Lease
(c) indemnify and keep the Lessor indemnified from and
against all actions, claims, costs, demands, expenses,
liabilities and losses arising from any breach of the
covenants on the Lessee's part or conditions contained
in this Lease or any act, omission or default in
relation to the Leased Property by the Lessee or any
Person deriving title under the Lessee or its or their
respective servants, agents or licensees.
(d) The following sections of the CONVEYANCING ACT 1919 do
not apply to this Lease:
(i) section 84;
(ii) section 84A;
(iii) section 85; and
<PAGE> 191
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(iv) section 86.
37.19 The references to any dollar amounts in this Lease shall be
increased from time to time during the Term as determined by
the Lessor. In determining the revised amounts the Lessor must
act reasonably and have regard to (but shall not be bound by)
increases in the Consumer Price Index. This clause shall not
apply to any dollar amounts of Rent or Outgoings which shall
only be varied as specifically provided for in this Lease.
PART 38 COMMISSIONS
38.1 The Lessee represents and warrants to the Lessor that no real
estate commission, finder's fee or the like is due and owing
to any Person in connection with this Lease. The Lessee agrees
to save, indemnify and hold the Lessor harmless from and
against any and all claims, liabilities or obligations for
brokerage, finder's fees or the like in connection with this
Lease or the transactions contemplated hereby, asserted by any
Person on the basis of any statement or act alleged to have
been made or taken by that party by and from the Lessee or any
other party to any of the Transaction Documents.
PART 39 GST
39.1 If during the Term a GST is introduced which is or may be
levied or becomes payable in connection with the supply of the
Leased Property or any goods, services or other things by the
Lessor to the Lessee under this Lease, the Lessor and the
Lessee agree that the GST will be levied and collected on:
(a) the Rent; and
(b) the Additional Charges; and
(c) anything else paid for or provided by the Lessor to the
Lessee under or in connection with this Lease.
on or after the later of:
(d) the first Rent review date under clause 3.1 after the
date of commencement or operation of the GST; or
(e) such other date provided for in the transitional
provisions of the legislation which imposes the GST.
<PAGE> 192
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39.2 Despite any other provision in this Lease:
(a) the Lessor is entitled to require the Lessee to pay in
addition to:
(i) the Rent; and
(ii) the Additional Charges; and
(iii) any other amounts payable by the Lessee to the
Lessor under or in connection with this Lease;
and recover from the Lessee; and
(b) the Lessee must pay the Lessor at the time the relevant
Rent, Additional Charges or other amount is payable;
the amount of any GST which is:
(c) levied or collected on the Rent; or
(d) levied or collected on the Additional Charges; or
(e) levied or collected in connection with anything else
for which the Lessee is required to pay, reimburse or
indemnify the Lessor under or in connection with this
Lease or falls within more than one of those
categories.
39.3 To the extent, if any, to which the previous clauses of this
Lease do not otherwise require the Lessee to pay the Lessor an
amount equal to any Input GST, then so much of the Input GST
for which the Lessor cannot obtain a credit against any
liability of the Lessor to GST in respect of this Lease is to
be added to:
(a) the Rent; or
(b) the Additional Charges; or
(c) any other amount the Lessee is required to pay,
reimburse or indemnify the Lessor under this Lease.
39.4 To the extent that this Lease does not otherwise provide, the
Lessee will be responsible for any other tax (including
without limitation a sales tax on services or capital gains
tax payable by the Lessor on the disposal of the Leased
Property), impost or duty imposed by any law of the
Commonwealth of Australia or any State or Territory of
Australia (whether in force prior to or coming into force
after the date of this Lease) on or in respect of the Lease,
the Leased Property or the Lessee's activities at the Leased
Property (excluding any income tax payable by the Lessor on
receipt of Rent or on other amounts payable by the Lessee to
the Lessor under or in
<PAGE> 193
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connection with this Lease).
39.5 For the purpose of clause 39.4 "capital gains tax payable by
the Lessor on the disposal of the Leased Property" means an
amount equal to the Tax calculated in accordance with the Tax
Act in respect of the year of income in which the Lessor
Disposes of the Leased Property or any part of the Leased
Property and which relates directly or indirectly (and for the
avoidance of doubt this will include any Tax calculated as
payable by any beneficiary of any trust as a result of the
inclusion in its assessable income of any amount arising from
the Disposal) to such Disposal (and ignoring any deductions or
concessions available to the Lessor other than those which
relate directly to the Leased Property) LESS an amount equal
to the amount of tax calculated in accordance with the Tax Act
in respect of the year of income in which the Lessor Disposes
of the Leased Property or any part of the Leased Property and
which relates directly or indirectly (and for the avoidance of
doubt this will include any Tax calculated as payable by any
beneficiary of any trust as a result of the inclusion in its
assessable income of any amount arising from the Disposal) to
such Disposal assuming:
A the Lessor acquired the Leased Property on the date of
this Agreement; and
B the acquisition cost of the Leased Property was $50
million or in the case of the Disposal of a part of the
Leased Property such proportion of $50 million as the
Lessor determines acting reasonably;
(and ignoring any deductions or concessions available to the
Lessor other than those which relate directly to the Leased
Property).
<PAGE> 194
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PART 40 LESSOR'S OPTION TO ACQUIRE BUSINESS ASSETS
40.1 The provisions in Schedule 7 shall have effect as if
incorporated in this Lease.
PART 41 ESSENTIAL TERMS
41.1 The Lessee's obligations to pay money under this Lease and the
Lessee's obligations under Parts 3, 4, 7, 8, 9, 10, 12, 13,
19, 22, 23, 39, 42 and 44 are essential terms of this Lease.
Other obligations of the Lessee may also be essential terms.
PART 42 FIRST RIGHT OF REFUSAL TO LEASE
FIRST RIGHT OF REFUSAL FOR OMEGA
42.1 Subject to the terms of this clause 42, the Lessor grants the
Lessee a right of pre- emption to take a new lease of the
Leased Property for a term commencing the day after the end of
the Term of this Lease. The right of pre-emption continues
only until the expiration of this Lease.
NO GRANT ANY MANAGEMENT RIGHTS OR LEASE BY THE LESSOR
42.2 The Lessor covenants that it shall not, before the end of the
Term, grant any lease of the Leased Property for a term
commencing after the Term without having first complied with
the right of pre-emption in accordance with this clause 42.
GIVING EFFECT TO THE PRE-EMPTION
42.3 If the Lessor intends to grant a lease of the Leased Property
for a term commencing after the end of the Term:
(a) the Lessor shall serve on the Lessee a written notice
at any time during the last 5 years of the Term
offering to grant a new lease of the Leased Property to
the Lessee, specifying the terms and conditions of the
new lease and forwarding with the notice a lease which
the Lessor is prepared to sign containing those terms
and conditions;
<PAGE> 195
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(b) the Lessor's offer to grant a new lease of the Leased
Property to the Lessee shall constitute an irrevocable
offer which the Lessee may accept within 30 days after
service of the notice on the Lessee;
(c) the Lessee may accept the Lessor's offer to lease the
Leased Property by delivering to the Lessor the new
lease submitted by the Lessor duly executed by the
Lessee;
(d) upon acceptance of the Lessor's offer by the Lessee
within 30 days, the parties are bound by the new lease
on the terms contained in the new lease;
(e) the Lessor will deliver to the Lessee within 7 days
after receipt of the new lease a copy duly executed by
the Lessor;
(f) if the Lessee does not accept the Lessor's offer of the
new lease, the Lessor may grant the new lease of the
Leased Property to a third party within 12 months after
service of the Lessor's written notice, on terms and
conditions which are not less favourable than the terms
and conditions on which the new lease was offered to
the Lessee;
(g) if the new lease of the Leased Property is not granted
by the Lessor in accordance with clause 42.3(f), and
subsequently the Lessor desires to grant a new lease of
the Leased Property, the Lessor shall again comply with
the provisions of this clause 42.
PART 43 POWER OF ATTORNEY
APPOINTMENT
43.1 The Lessee appoints the Lessor, any director or officer of the
Lessor and any partner in the firm of solicitors representing
the Lessor (and the Lessor's successors and assigns, being the
owner of the Lease Property for the time being) as the
Lessee's attorney with the powers contained in this clause.
IRREVOCABLE POWER
43.2 This power of attorney is:
(a) irrevocable by the Lessee;
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(b) granted by the Lessee for valuable consideration (the
grant of this Lease by the Lease) to secure the
performance of the Lessee's obligations and the
Lessor's proprietary interest over the Leased Property;
(c) only exercisable by the Lessor where there is an Event
of Default.
EXTENT OF POWER - SPECIFIC
43.3 The Lessor as the Lessee's attorney and in the name and on
behalf of the Lessee may:
(a) grant one or more subleases over the Leased Property:
(i) while the Lessee is the Lessee of the Leased
Property;
(ii) after the Lessee has vacated or abandoned the Leased
Property in breach of this Lease;
(iii) such sublease being:
(A) over the whole or any part of the Leased
Property; and
(B) limited to the duration of the then existing
term of this Lease binding the Lessee.
(b) transfer this Lease to an assignee of the Lease and
execute any other documents reasonably required in
connection with the transfer of this Lease, after the
Lessee vacates or abandons the Leased Premises, when
this Lease is not terminated;
(c) surrender this Lease after;
(i) the Lessor has become entitled to terminate
this Lease; and
(ii) the Lessee vacated or abandons the Leased
Property; or
(iii) the Lessor terminated this Lease by serving
notice of termination;
(d) withdraw any caveat lodged by the Lessee in respect of
this Lease, after the Lessor effectively terminated
this Lease;
(e) execute any document required under the Essential
Legislation which is required to be executed in
relation to the Primary Intended Use of the Leased
Property.
EXTENT OF POWER - GENERAL
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43.4 The Lessor may:
(a) act as attorney under this Part 43 during the
continuance of this Lease and for the period of 6
months after the end of this Lease;
(b) register this Lease (or lease provision) as a power of
attorney, at any time including after the termination
of this Lease, if that is required for the exercise of
any power;
(c) ratify and confirm any power when exercised under this
clause, as attorney and agent for the Lessee.
PART 44 ESSENTIAL LEGISLATION
GENERAL
44.1 The Lessor and the Lessee agree that the rights and
obligations under this Part 44 are in addition to and shall
not limit the generality of the other rights and obligations
under this Lease.
COMPLIANCE WITH ESSENTIAL LEGISLATION
44.2 The Lessee must promptly and at its own cost comply with the
provisions of the Essential Legislation in so far as it
affects the Leased Property (including, but not limited to,
the use of the Leased Property for the Primary Intended Use)
provided that if the Lessee has complied fully with the
foregoing provisions of this clause 44.2, it shall not be
deemed to be an Event of Default if the number of Beds shall
be reduced as a result of compliance with Essential
Legislation provided always that the Lessee is not in breach
of any of the covenants contained in clauses 3 or 8 of this
Lease.
DEBTS DUE TO GOVERNMENT
44.3 The Lessee covenants and warrants to the Lessor that the
Lessee will be solely responsible for and must pay any debts
due to any government or semi-government authority (including
any grants which must be repaid to any government or semi-
government authority) as required under the Essential
Legislation.
TRANSFER OF APPROVALS
44.4 At the end of this Lease, including termination due to an
Event of Default, the Lessee must at its cost promptly do all
things necessary, including under Essential Legislation, to
transfer to the Lessor (or such other Person nominated by the
Lessor) such Approvals which have been granted to or are
within the control of the Lessee.
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FUNDING
44.5 The Lessee must apply all funding and subsidies which it
receives under from any government or semi-government
authority under any Essential Legislation directly for the
purpose for which the funding or subsidy was granted and for
no other purpose.
COPIES OF NOTICES AND ORDERS
44.6 The Lessee must promptly give the Lessor copies of all
reports, notices and orders issued under the Essential
Legislation in relation to the Leased Premises by any
government or semi-government body.
INDEMNITY
44.7 To the fullest extent permitted by law, the Lessee agrees to
protect, indemnify, defend and save harmless the Lessor, its
directors, officers, shareholders, agents and employees from
and against any and all foreseeable or unforeseeable
liability, expense, loss, costs, deficiency, fine, penalty, or
damage, (including without limitation punitive or
consequential damages) of any kind or nature, including proper
legal costs from any suits, claims or demands, on account of
any matter or thing, action or failure to act arising out of
any failure by the Lessee to comply with any aspect of the
Essential Legislation.
PART 45 LIMITATION OF LIABILITY
ACKNOWLEDGEMENT
45.1 The parties acknowledge and agree that:
(a) the Lessor has entered into this Lease in its capacity
as the trustee of the Trust and in no other capacity;
(b) (subject to clause 45.3) the Lessor is not liable to
pay or satisfy any of its obligations under this Lease
and has no liability to the other parties except to the
extent of the Lessor's right of indemnity out of the
assets of the Trust;
(c) if those assets are insufficient, the Lessee may not
seek to recover any shortfall by bringing proceedings
against the Lessor personally and may not seek the
appointment of a liquidator, administration or
arrangement of or affecting the Lessor.
RELEASE
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45.2 Subject to clause 45.3, the Lessee and the Guarantor waive
their rights and release the Lessor from any personal
liability whatsoever in respect of any loss or damage which
cannot be paid or satisfied out of the assets of the Trust.
PERSONAL LIABILITY
45.3 The Lessor is liable personally and is not released to the
extent that a liability under this Lease arises out of the
Lessor's own fraud, gross negligence, breach of trust or
breach of duty which disentitles it from any indemnity out of
the assets of the Trust in relation to the relevant liability.
LIABILITY LIMITED UNDER LEASE
45.4 Despite any other provision of this Lease, the liability of
the Lessor is limited by the provisions of clauses 45.1 to
45.3. In the event of any inconsistency with any other
provision of this Lease, these clauses are paramount.
NO AGENCY
45.5 No agent of the Lessor has authority to act on behalf of the
Lessor in a way which exposes the Lessor to any personal
liability. No act or omission of any such person will be of
itself considered fraud, negligence, breach of trust or breach
of duty of the Lessor for the purpose of clause 45.3.
46 YEAR 15 OPTION
OPTION
46.1 The Lessee shall have the option on the Year 15 Option Date
("Year 15 Option") to purchase the Leased Property on the
terms of this Part 46 if:
(a) the Lessee signs and returns to the Lessor a Notice in
the form of the Option Notice in Schedule 5 to this
Lease (amended to refer to this Part 46) ("Year 15
Option Notice");
(b) the Lessor receives the Year 15 Option Notice not more
than 12 months and not less than 6 months before the
Year 15 Option Date;
(c) the Lessee contemporaneously gives the Lessor a Year 15
Option Notice under each Supplemental Lease, each Group
Lease and each Supplemental Lease to such Group Lease;
(d) when the Lessee gives that notice, and on the
Terminating Date, it is not in breach of this Lease,
any Group Lease or any Supplemental Lease to any
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Group Lease.
PROVISIONS TO APPLY
46.2 The provisions of Part 18 of this Lease shall apply to the
exercise of the Year 15 Option with the following variations:
(a) "Completion Date" means within 3 calendar months after
the Year 15 Option Date.
(b) The purchase price of the Leased Property shall be an
amount equal to the Repurchase Price plus all Rent then
due and payable and all other sums due under the terms
of this Lease from the Lessee to the Lessor as at the
date of completion of the purchase.
(c) The provisions of Schedule 6 shall apply to any
agreement for sale and purchase arising under this Part
46.
(d) The Lessor shall not be obliged to complete the sale of
the freehold in part only nor to complete the sale
otherwise than contemporaneously with completion of the
sales under the corresponding provisions of each
Supplemental Lease, each Group Lease and each
Supplemental Lease to such Group Lease.
<PAGE> 201
SCHEDULE ONE
DICTIONARY
"ACCOUNTS" means the audited balance sheet and profit and loss account of any
Person made up to its accounting reference date in any year (or the equivalent
in relation to a Person that is not a company incorporated in Australia)
together with the notes and reports forming part of the accounts (if any).
"ADDITIONAL CHARGES" means:
(a) all Outgoings as provided in clause 4.1;
(b) all other amounts, liabilities and obligations which the
Lessee assumes or agrees to pay under this Lease; and
(c) all fines, penalties, interest and costs which may be lawfully
payable for nonpayment or late payment of the amounts referred
to in (a) and (b) above.
"ADJUSTED RENT" means the Rent payable from any Adjustment Date.
"ADJUSTMENT DATES" means 1 July 2000 and each successive 1 July during the Term
referred to in Part 3.
"APPROVALS" includes all licences, consents, registrations, certifications,
accreditations and approvals relevant to the use and operation of each Facility
for the Primary Intended Use in compliance with all applicable Legal
Requirements.
"ASSOCIATED COMPANY" means with respect to any Person:
(a) any Person directly or indirectly controlling, controlled by
or under common control with such Person;
(b) any executive officer, director or general partner of such
Person; or
(c) any Person who is an executive officer, director, general
partner, or trustee of any Person described in paragraphs (a)
and (b) and "control" (including with correlative meanings,
the terms "controlling", "controlled by" and "under common
control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of such
Person, whether through the ownership of voting securities or
by contract or agency or otherwise but such Person shall only
be deemed to have control over another if it owns directly or
indirectly 51% of the issued shares or other voting ownership
rights in such Person.
For the purpose of determining an "Associated Company" of the Lessee, the
definition shall exclude
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any company which is situated above Moran Health Care Group Pty Limited in the
Lessee's company structure.
"ASSUMED INDEBTEDNESS" means any indebtedness or other obligations of the
Lessor, secured by an Encumbrance over the freehold in the Leased Property.
"AWARD" means all compensation, sums or anything of value awarded, paid or
received on a total or partial condemnation.
"BALANCE OF THE TERM" means the period from the date of termination of the Lease
until the Terminating Date.
"BED" means a bed at a Facility the provision of which is provided for under the
terms of an Approval pursuant to the Essential Legislation.
"BUSINESS DAY" means any day except a bank or public holiday throughout New
South Wales or a Saturday or Sunday.
"CASH FLOW" means for any financial year of the Lessee, the sum of:
(a) net income of the Lessee for such period (when calculating
such net income the Lessee shall be entitled to deduct from
gross income either Management Fees or a maximum allowance
equal to 4% of gross revenues in accordance with General
Standards for such period by way of allowance for central
office overheads);
(b) the amount of depreciation and amortization which was deducted
in computing such net income; and
(c) Rent, reduced by capital expenditures for such period (and in
no event less than $300 per Bed per annum).
"CLEAN UP" means the removal and/or remediation and/or elimination of, or other
response to, Contamination to the satisfaction of all applicable governmental
agencies, in compliance with Environmental Laws and in compliance with good
environmental management and prudent commercial practice.
"COMMENCEMENT DATE" means the date of this Lease.
"CONDEMNER" means any public or quasi-public authority, or private corporation
or individual, having the power of effecting any Seizure Matter.
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"CONSUMER PRICE INDEX" means the index of underlying inflation, as defined by
the Commonwealth Treasury and published by the Australian Bureau of Statistics
or if such index is not published then the nearest approximate index to be
determined by the Lessor in the Lessor's reasonable discretion.
"CONTAMINATION" means the presence (or absence) of any Hazardous Substance or
the existence of any injury to health, safety or the environment or any other
environmental condition at, in, or under the Leased Property, or any Release at,
in, on, from or to the Leased Property, either in breach of Environmental Laws
or at the time of expiration or earlier termination of the Term of this Lease,
which would be reasonably required to be removed (or added) to ensure that no
environmental matter restricts the present or future use, operation, leasing,
development, construction, alteration, refinancing or sale of the Leased
Property.
"CURRENT ASSETS" means at any date, all assets of the Lessee that in conformity
with General Standards should be classified as current assets at such date.
"CURRENT LIABILITIES" means at any date, all liabilities of the Lessee that in
conformity with General Standards should be classified as current liabilities at
such date.
"DATE OF TAKING" means the date the Condemner has the right to possession of the
Facility.
"DEBT" excludes any letter of credit for any Rent deposit payable by the Lessee
and means as applied to any Person:
(a) any obligation for the payment or repayment of money, whether
present, future or actual, in respect of:
(i) money borrowed, raised, advanced or paid; or
(ii) any bond, note, loan stock, debenture or similar
instrument; or
(iii) any acceptance or documentary letter of credit
facility; or
(iv) deferred payment (for more than 90 days) for any
service or asset; or
(vii) guarantees and other assurances against financial loss
in respect of any Financial Indebtedness of the kind
referred to in paragraphs (I) to (vi) above inclusive
of any person;
(b) that portion of obligations with respect to Finance Leases
(for the avoidance of doubt, excluding this Lease) which is
properly classified as a liability on a balance sheet in
conformity with General Standards;
(c) any obligation owed for all or any part of the deferred
purchase price of property or services which purchase price is
(i) due more than three months from the date of incurrence
of the obligation in
<PAGE> 204
respect thereof; or
(ii) evidenced by a note or similar written instrument; and
(d) all indebtedness secured by any lien (other than a lien,
arising by operation of law) on any property or asset owned or
held by that Person regardless of whether the indebtedness
secured thereby has been assumed by that Person or is
non-recourse to the credit of that Person.
"DEBT SERVICE" means as of the end of any accounting period, the sum of
(a) all (in the case of an annual period) or one-fourth (in the
case of a quarterly period) of Long Term Obligations Due
Within One Year as of the end of such period; and
(b) Rent..
"DICTIONARY" means the dictionary contained in Schedule One to this Lease.
"DISPOSAL" means disposal or deemed disposal pursuant to the Tax Act.
"ENCUMBRANCE" means any mortgage, charge, deed of trust, lien or encumbrance
securing any borrowing or other means of financing or refinancing, contract of
sale or other matter affecting title to the Leased Property, or any portion
thereof or interest therein.
"ENVIRONMENTAL DOCUMENTS" means each and every one of the following:
(a) each and every document received by the Lessee or any
Associated Company from, and each and every document submitted
by the Lessee or any Associated Company to any environmental
health authority or agency or concerning safety in
environmental matters with respect to the condition of the
Leased Property, or the Lessee's operations upon the Leased
Property; and
(b) each and every review, audit, report, or other analysis
concerning environmental conditions, including, but not
limited to Contamination at, in, or under or with respect to
the Leased Property that have been prepared by or on behalf of
or for the benefit of the Lessee.
"ENVIRONMENTAL LAWS" means each and every law (including, without limitation,
common law), statute, code, ordinance, regulation, rule, order permit, consent
decree or other requirement(including, but not limited to, consent decrees and
judicial or administrative orders), and any other executive, judicial,
regulatory or administrative agency, authority, board, bureau, commission,
court, arbitrator or arbitration board, relating to health or safety or to the
environment, including, but not limited to, those applicable to the
manufacture, processing, transportation, distribution in commerce, use,
generation, storage, treatment, disposal, handling and Release of any Hazardous
Substance including medical waste, all as amended or modified from time to
time, and those applicable to
<PAGE> 205
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pollution, contamination, injury, destruction, loss, protection, cleanup,
reclamation or restoration of the soil, ground water, surface water, air or
other natural resources, to exposure to pollutants, contaminants, hazardous
or toxic substances, petroleum products, materials or wastes.
"ENVIRONMENTAL REPORT" means the environmental review, audit and/or report
relating to the Leased Property to be provided by the Lessee to the Lessor.
"ESSENTIAL LEGISLATION" means Aged Care Act 1997 (Cth), Aged or Disabled Persons
Care Act 1954(Cth), National Health Act 1953(Cth), Nursing Homes Act 1988 (NSW),
Health Care Complaints Act 1993 (NSW), Retirement Villages Act 1989 (NSW) and
includes any subsequent statutory re-enactment or modification of any such Act
and any order, regulation, directive, by-law, rule, consent or Approval made or
granted under such Act or by any public or local authority acting in its
official capacity or by any court of competent jurisdiction or any other Act,
order, regulation, directive, by-law, rule, consent or Approval which in any way
affects the use of the Leased Property for the Primary Intended Use.
"EVENT OF DEFAULT" has the meaning defined in Part 16 and as otherwise
specifically provided in this Lease.
"EXCLUDED PERSONAL PROPERTY" means all of the chattels at the Leased Property on
the Commencement Date other than the Lessor's Personal Property and includes the
Residents Personal Property .
"FACILITY" means a registered nursing home/residential care facility and any
other aged care or health care related facility both currently or subject to the
terms of this Lease subsequently operated at the Leased Property including the
Lessee's Personal Property, the Lessor's Personal Property and the Fixtures
located in the Facility.
"FACILITY MORTGAGE" any Encumbrance placed on the Leased Property in accordance
with the provisions of Part 35.
"FACILITY MORTGAGEE" means any holder of any mortgage deed of trust or other
security agreement securing any Assumed Indebtedness.
<PAGE> 206
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"FINANCE LEASE" means any lease of any property (whether real or moveable) to
any Person which would, in accordance with General Standards, be required to be
accounted for as a lease on the balance sheet of that Person.
"FIXTURES" means all plant and equipment fixed to the Leased Property.
"FULL REPLACEMENT COST" means the Lessor's estimate from time to time of, or
such (if any) higher figure as the Lessor may from time to time specify by
Notice to the Lessee as, the actual replacement cost of the Leased Property
including without limitation allowance for inflation in building costs,
demolition and site clearance expenses for temporary support and protection
costs of compliance with local authority requirements architects surveyors and
other professional fees and all other incidental expenses and GST on any of the
foregoing an increased cost of construction endorsement, less exclusions
provided in the standard form of fire insurance policy.
"GENERAL STANDARDS" means generally accepted accounting principles consistent
with those applied in the preparation of financial statements in Australia.
"GROUP COMPANY" means the Lessee, the Guarantor and any person who at any time
on, or after the date of this Lease is a Related Body Corporate (as the context
may require).
"GROUP LEASE" means this Lease and each other present or future lease:
(a) which is granted by an Omega Company to a Group Company
before, on or after the date of this Lease;
(b) otherwise in relation to which, at any time before, on or
after the date of this Lease, an Omega Company is the lessor
and a Group company is the lessee; or
(c) which the Lessor and the Lessee and (if required by the
Lessor) any Guarantor otherwise have agreed or may agree in
writing shall be designated a Group Lease.
"GUARANTOR" means Moran Health Care Group Pty Limited (ACN 008 585 242) and any
other person who during the Term acts as surety or guarantor of the Lessee (and
whether or not as a primary obliger).
"GST" means goods and services tax, consumption tax, value added tax or any
similar tax, impost or duty imposed by any law of the Commonwealth of Australia
or any State or Territory of Australia (whether in force before or coming into
force after the date of this Lease).
"HAZARDOUS SUBSTANCES" means any dangerous, toxic or hazardous material,
petroleum products, pollutants, contaminant, chemical, waste including medical
waste or substance defined, listed or described as any of such in or governed by
any Environmental Law.
"INITIAL PURCHASE PRICE" means $50,500,000.
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"INPUT GST" means the GST which is charged or levied by any Person on goods,
services or other things acquired by the Lessor concerning the goods, services
and other things which the Lessor, in turn, provides to the Lessee under this
Lease.
"INSURANCE REQUIREMENTS" means all terms of any insurance policy required by
this Lease and all requirements of the issuer of any such policy.
"INSURED RISKS" means fire, explosion, storm, tempest (including lightning),
flood, burst pipes, impact and (in peacetime) aircraft and articles dropped from
aircraft, riot and civil commotion and any other risks against which the Lessor
or any Facility Mortgagee may from time to time require the Lessee to effect
insurance in respect of the Leased Properties.
"LAND" means the land described on the cover sheet of this Lease.
"LEASE" means this Lease any Supplemental Lease and any other deed expressed to
be supplemental hereto and includes any schedules and Exhibits hereto or
thereto.
"LEASE GUARANTEE" means the guarantee given by the Guarantor under Part 42 of
this Lease in respect of the Obligations.
"LEASE YEAR" means the period from 1st July in each year of the Term (but from
the date of this Lease in the case of the first year of the Term) to 30th June
in the next following calendar year.
"LEASED PROPERTY" means the Land, each Facility, the Fixtures and the Lessor's
Personal Property. If any such assets shall cease to be subject to this Lease
before the expiration or sooner determination of the Term, the assets will cease
to be part of the Leased Property and the definitions of Property, Facility,
Fixtures and the Lessor's Personal Property shall be modified accordingly.
"LEGAL CHARGE" means any legal mortgage made between the Lessee and the Lessor
relating to this Lease.
"LEGAL REQUIREMENTS" includes the Environmental Laws, the Essential Legislation
and the Planning Acts and means every other Act of Parliament or requirement of
any local or government authority or agency relating to or affecting the Leased
Property or the ownership use, construction, operation, maintenance, lease,
sublease, repair, rebuilding, occupation or alteration thereof or the employment
or residence therein of any person or otherwise howsoever relating to the Leased
Property or the interest of the Lessor, the Lessee or any third party in the
Leased Property.
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This definition includes, unless a contrary intention is stated, (without
limitation) every Act of Parliament whether named in this Lease or not or
whether in force today or not and any subsequent statutory re-enactment or
modification of any Act of Parliament and any order, regulation, directive,
by-law, rule, consent or licence made or granted under any Act of Parliament or
by any public or local authority acting in its official capacity) or by any
court of competent jurisdiction.
"LESSEE" means Moran Health Care (Australia) Pty Limited (ACN 082 466 457) and
its successors in title and assigns.
"LESSEE'S CERTIFICATE" means a statement in writing in substantially the same
form of Schedule 4 attached hereto (with such changes thereto as may reasonably
be requested by the Person relying on such certificate qualified as may be
necessary to render such certificate true).
"LESSEE'S PERSONAL PROPERTY" means all tangible moveable personal property
acquired by the Lessee for use in connection with each Facility, except the
Lessor's Personal Property, Fixtures and Replacement Property .
"LESSOR" means Premier Care Australia Pty Limited (ACN 069 875 476) and its
successors in title and assigns.
"LESSOR'S PERSONAL PROPERTY" means all of the assets and chattels at the Leased
Property on the Commencement Date.
"LONG TERM OBLIGATIONS DUE WITHIN ONE YEAR" means as of any date, all Debt of
the Lessee that in conformity with the General Standards should be classified as
long-term obligations due within one year of such date.
"MANAGEMENT CONTRACT" means any agreement or arrangement under which any Person
(not being an employee, officer or director of the Lessee) is appointed to
manage on behalf of the Lessee the whole of any Facility.
"MANAGEMENT FEES" means fees paid to any Person (not being an officer, director
or employee of the payer) for the management of the whole of any Facility or
Facilities to a maximum amount of 4% of the Lessee's gross revenue per annum
(calculated in accordance with General Standards).
"MAXIMUM RENT APPORTIONMENT" means in relation to any Facility or Leased
Property such amount as represents the product of the following formula:
RP x R
---
100
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where RP is the amount of the Repurchase Price of the relevant Facility or
Leased Property (to which the apportionment in question is made) at the relevant
time and R is the product of the Rent divided by the Initial Purchase Price and
multiplied by 100%.
"MINIMUM CAPITAL EXPENDITURE" means the sum required to be expended each Lease
Year by the Lessee in accordance with Part 8.
"MINIMUM CONTINUING RENT" means in relation to any Facility or Leased Property
such amount as represents the product of the following formula:
RP x 10
--
100
"MINIMUM NET WORTH" means initially $100,000 increasing on the first day of each
fiscal period of the Lease on a cumulative basis by an amount equal to:
(a) (whilst the minimum net worth of the Lessee is less than or
equal to $1,000,000) 30% of the post tax profits of the Lessee
as disclosed in the Lessee's Accounts for the immediately
preceding fiscal period of the Lease excluding any such
profits derived from the sale of any Surplus Land as defined
in the Relationship Agreement (referred to below) within the
first 30 months of the Term and the sale of any DMZ (also as
defined in the Relationship Agreement) within the first 24
months of the Term;
(b) (when the minimum net worth of the Lessee exceeds $1,000,000)
such percentage as equals the percentage by which the Consumer
Price Index published on the last published date before
commencement of that Lease Year exceeds the corresponding
Consumer Price Index published on the last published date
before commencement of the immediately preceding Lease Year.
"NET PROCEEDS" means all proceeds received by reason of any loss or damage to
the Leased Property, or any portion thereof, insured under any policy of
insurance required by Part 13 of this Lease, net of any costs incurred by the
Lessor in obtaining such proceeds.
"NOTICE" means any notices, demands, requests, consents, approvals and other
communications given pursuant to Part 31 of this Lease.
"OBLIGATIONS" means the Lessee responsibilities, duties and obligations under
this lease and at law.
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"OFFICER'S CERTIFICATE" means a certificate of the Lessee signed by one or more
directors of the Lessee.
"OPTION NOTICE" means a notice in the form of a Notice set out in Schedule 5 of
this Lease.
"OUTGOINGS" means collectively, all rates, taxes, assessments, duties,
outgoings, impositions and charges whatsoever, water, sewer or other rents and
charges, excises, tax levies, fees (including, without limitation, registration,
licence, permit, inspection, authorization and similar fees), and all other
governmental or local charges, in each case whether general or special, ordinary
or extraordinary, foreseen or unforeseen, of every character in respect of the
Leased Property or the business conducted thereon by the Lessee and/or the Rent
(including all interest and penalties thereon due to any failure in payment by
the Lessee), which at any time before, during or in respect of the Term hereof
may be assessed or imposed on or in respect of
(a) the Lessor or the Lessor's interest in the Leased Property,
(b) the Leased Property or any part thereof or any rent therefrom
or any estate, right, title or interest therein,
(c) any occupancy, operation, use or possession of, or sales from,
or activity conducted on, or in connection with the Leased
Property or the leasing or use of the Leased Property or any
part thereof, or
(d) the Rent.
Not included in the definition of Outgoings are:
(a) income tax, company tax and capital gains tax and any other
taxes (whether taxes of Australia, New South Wales or foreign
taxes) charged on the income, profits or gains of the Lessor
in respect of Rent paid under this Lease or any disposal by
the Lessor of the freehold interest in the Leased Property of
any part thereof;
(b) GST (which is expressly dealt with in the Lease); and
(c) withholding taxes.
"OVERDUE RATE" means on any date, a rate equal to five percentage points above
the average bid rate for bills (as defined in the Bills of Exchange Act 1901
(Cwth)) which is displayed on the page of the Reuters Monitor System designated
"BBSY" but in no event greater than the maximum rate then permitted under
applicable law.
"PAYMENT DATE" means any due date for the payment of the instalments of Rent,
Additional Charges, or any other sums payable under this Lease.
"PERMITTED ENCUMBRANCES" means the applicable permitted encumbrances described
or referred
<PAGE> 211
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to in Schedule 3 of this Lease.
"PERSON" means any natural person, trust, partnership, company, corporation,
joint venture or other legal entity.
"PLANNING ACTS" means the Local Government Act 1993, the Environmental Planning
and Assessment Act 1979.
"PRESENT VALUE" of any amount means such amount as may be agreed between the
parties at its present value (being discounted to reflect accelerated payments
and so reflect appropriate damages) as at the date of termination of the Lease
having regard to relevant information about prevailing interest rates for the
Balance of the Term, or, in default of such agreement, as may be determined in
accordance with Part 36.
"PRIMARY INTENDED USE" means use as an aged care facility, assisted and
self-care aged living accommodation, nursing home, hostel, retirement village or
residential care home (including the provision of health and nursing services)
in accordance with the certificate or certificates of registration existing on
the date of this Lease in respect of the Facilities pursuant to the Essential
Legislation or if such legislation is repealed and not replaced by equivalent
legislation of like effect as a high class aged care facility, assisted and
self-care aged living accommodation, nursing home, hostel, retirement village or
residential care home.
"PURCHASE PRICE" means the Initial Purchase Price and in addition any Purchase
Price as referred to in any Supplemental Lease.
"REGISTRAR GENERAL" means the Registrar General of the Land Titles Office of New
South Wales.
"REGULATORY ACTIONS" means any claim, demand, action or proceeding brought or
instigated by any government authority in connection with any Environmental Law,
including, without limitation, civil and/or criminal administrative proceedings,
and whether or not seeking costs, damages, penalties or expenses.
"RELATED BODY CORPORATE" has the same meaning as that given in the Corporations
Law.
"RELEASE" means the intentional or unintentional spilling, leaking, dumping,
pouring, emptying, seeping, disposing, discharging, emitting, depositing,
injecting, leaching, escaping, abandoning, or any other release or threatened
release, however defined, of any Hazardous Substance.
"RENT" means the initial rent of $1 payable until [## 12 months less 1 day after
closing] increasing to $5,000,000 from and including [## 12 months from closing]
during the first Lease Year until 30 June 2000 and such increased amount from 1
July 2000 and in subsequent Lease Years asreferred to in Part 3 and also
includes (in addition) the yearly rent from time to time reserved by each
Supplemental Lease.
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"RENT DEPOSIT ACCOUNT" means any bank account under the control of the Lessor
and maintained by the Lessee pursuant to any rent deposit deed made between the
Lessee and the Lessor and supplemental to this Lease.
"REPLACEMENT PROPERTY" means any operational equipment or parts or property of
the Fixtures or Lessor's Personal Property which have been replaced by the
Lessee under clause 9.11.
"REPLACED PROPERTY" means any of the Fixtures or the Lessor's Personal Property
which have:
(a) become worn out, obsolete or unusable for the purpose for
which it is intended; or
(b) been lost or stolen damaged or destroyed (subject to Part 14).
"REPURCHASE PRICE" means the gross amount that the Lessor must receive so that
after deducting an amount equal to the Tax calculated in accordance with the Tax
Act in respect of the year of income in which the Lessor Disposes of the Leased
Property or any part of the Leased Property and which relates directly or
indirectly (and for the avoidance of doubt this will include any Tax calculated
as payable by any beneficiary of any trust as a result of the inclusion in its
assessable income of any amount arising from the Disposal) to such Disposal (and
ignoring any deductions or concessions available to the Lessor other than those
which relate directly to the Leased Property) so that it receives:
(a) a net amount equal to 11 time the Rent payable immediately
before the date of completion of the purchase of the Leased
Property;
(b) LESS an amount equal to the amount of tax calculated in
accordance with the Tax Act in respect of the year of income
in which the Lessor Disposes of the Leased Property or any
part of the Leased Property and which relates directly or
indirectly (and for the avoidance of doubt this will include
any Tax calculated as payable by any beneficiary of any trust
as a result of the inclusion in its assessable income of any
amount arising from the Disposal) to such Disposal assuming:
A the Lessor acquired the Leased Property on the date of
this Agreement; and
B the acquisition cost of the Leased Property was $50
million or in the case of the Disposal of a part of the
Leased Property such proportion of $50 million as the
Lessor determines acting reasonably;
(and ignoring any deductions or concessions available to the Lessor other than
those which relate directly to the Leased Property).
"RESIDENTS' PERSONAL PROPERTY" means all of the chattels at the Leased Property
on the Commencement Date owned by the residents of the Leased Property.
"SECURITY AGREEMENT" means a fixed and floating charge granted on the date of
this Lease between
<PAGE> 213
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the Lessee and the Lessor.
"SEIZURE MATTER" means if (whether by order of any government or authority or
otherwise) the Leased Property or any material part thereof shall be dismantled,
confiscated, compulsorily required, vested, seized or appropriated or otherwise
permanently or for any material period closed or taken out of the possession or
control of the Lessee or the Lessor but excluding taking of possession by any
mortgagee.
"SUBDIVISION APPLICATION" means the application by the Purchaser to the relevant
local council to subdivide the Development Property in accordance with the
Subdivision Plan (including all plans and written applications).
"SUBDIVISION APPROVAL" means the approval by the local council of the
Subdivision Application.
"SUBDIVISION PLAN" means the plan or plans of subdivision of the Development
Property (including any easements, covenants and restrictions required by the
Lessor) prepared by the Lessee at its cost and in accordance with the directions
and requirements of the Lessor.
"SUPPLEMENTAL LEASE" means any lease or underlease between the Lessor and the
Lessee (and whether or not a Guarantor shall be party thereto) expressed to be
supplemental to this Lease.
"TAKING" means a notice to treat, notice of entry or any compulsory purchase or
vesting or any Seizure Matter of all or part of the Leased Property, or any
interest therein or right accruing thereto or use thereof, affecting the Leased
Property whether or not the same shall have actually been commenced.
"TANGIBLE NET WORTH" means at any date in respect of any Person, the net worth
of that Person as determined in conformity with the General Standards (but
recording debt that is subordinated to all liabilities of the Person as equity
or in the case of a company ordinary share capital), less the consolidated
Intangible Assets of that Person, as determined at such date. For purposes of
this definition, "Intangible Assets" means the amount of
(a) all unamortised debt discount and expense, unamortised
deferred charges, goodwill, patents, trademarks, service
marks, trade names, copyrights, organizational and
developmental expenses, unamortised operating rights,
unamortised licences,
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unamortised leasehold rights and other intangible assets;or
depreciation and any write-up resulting from a change in
methods of accounting or inventory; and
(b) the amount of any investment in any Associated Company. For
the purpose of calculating Tangible Net Worth there may be
taken into account to the extent consistent with the General
Standards the amounts standing to the credit of any Rent
Deposit Account.
"TAX" means any present or future tax, levy, impost, deduction, charge, duty,
compulsory loan or withholding (together with any related interest, penalty and
fine in connection with any of them) levied or imposed by any government agency,
other than those imposed on overall net income;
"TAX ACT" means the Income Tax Assessment Act 1936 and includes the Income Tax
Assessment Act 1997, and in either case where amended, re-enacted or replaced
that amended, re-enacted or replacement legislation.
"TERM"means the term of 30 years from and including the Term Commencement Date .
"TERM COMMENCEMENT DATE" means the date of this lease.
"TERMINATING DATE" means the date which is 30 years after the Term Commencement
Date.
"THIRD PARTY CLAIMS" means any claims, actions, demands or proceedings (other
than Regulatory Actions) howsoever based on (including without limitation) those
based on negligence, trespass, strict liability, nuisance, toxic tort or
detriment to health, welfare or property) due to Contamination, and whether or
not seeking costs, damages, penalties or expenses, brought by any person or
entity other than a governmental agency.
"TRANSACTION DOCUMENTS" means:
- - the Relationship Agreement (so called) between Omega
Worldwide, Inc, the Guarantor and various other parties; and
- - the Lease Guarantee (so called) between the Lessor and the
Guarantor; and
- - the Procurement Agreement (so called) between the Lessee, FAI
Insurances Limited (ACN 004 304 545), the Guarantor and
certain members of the Moran family;
all dated on or about the same date as this Lease.
"TRUST" means Assisted Living Unit Trust.
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"TURNOVER" means the aggregate of all sums of money or other consideration
received or receivable for all services sold or performed and all goods (if any)
sold, leased, hired or otherwise disposed of and from all businesses of any
nature whatever conducted at, in, from, on or upon each Facility by the Lessee.
In calculating such sums no deduction shall be made for bad or doubtful debts
but shall not include any GST, purchase tax and any similar sales or excise tax
imposed directly on the Lessee in respect of the supply of goods or services but
only to the extent that such tax is actually paid or accounted for by the Lessee
to the taxing authority.
"TURNOVER PERIOD" means the period of 12 months expiring on the last day of the
calendar month immediately preceding the date of expiration of each Lease Year
except for the period from the date of this Lease to 30 June 2000 in which case
the Turnover Period shall be the period commencing on the date of this Lease and
expiring on 30 June 2000.
"UNAVOIDABLE DELAYS" means delays due to strikes, lock-outs, inability to
procure materials, power failure, acts of God, governmental restrictions, enemy
action, civil commotion, fire, unavoidable casualty or other causes beyond the
control of the party responsible for performing an obligation hereunder,
provided that lack of funds shall not be a cause beyond the control of either
party to this Lease.
"UNSUITABLE FOR ITS PRIMARY INTENDED USE" means a state or condition of a
Facility such that by reason of damage or destruction, or a Seizure Matter, that
Facility cannot (in the reasonable opinion of the Lessor) be operated for its
Primary Intended Use, taking into account, among other relevant factors, the
number of useable Beds, the amount of square footage and the estimated revenue
affected by such damage or destruction.
"YEAR 15 OPTION DATE" means the date which is 15 years after the Commencement
Date.
<PAGE> 216
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SCHEDULE 2: LEASED PROPERTY
LEASED PROPERTY
All the land and buildings comprised within the following Certificates of Title:
1 Endeavour: Certificate of Title Vol 8641 Fol 117
Folio Identifier 16/37509
2 Oban: Folio Identifier 2/37509
Folio Identifier 3/37509
Folio Identifier 4/37509
Folio Identifier 5/37509
Folio Identifier 6/37509
Folio Identifier 17/111507
3 Berkeley Village: Certificate of Title Vol 8624 Fol 130
4 Glenmere: Certificate of Title Vol 8644 Fol 38
5 Seaside: Folio Identifier 51/SP22115
6 Tweed Heads: Folio Identifier 1/719133
Folio Identifier 11/736515
Certificate of Title Vol 8644 Fol 37
7 Edgewood Park: Certificate of Title Vol 8643 Fol 95
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8 Killarney Vale: Folio Identifier 22/794053
Certificate of Title Vol 8641 Fol 95
Folio Identifier 13/732182
9 Cherrywood: Folio Identifier 27/837884
10 Hillside: Certificate of Title Vol 8638 Fol 198
PROPORTION OF RENT AND INITIAL PURCHASE PRICE APPLICABLE TO EACH FACILITY
PURCHASE PRICE RENT
$ $
1.
2.
Total
<PAGE> 218
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SCHEDULE 3: PERMITTED ENCUMBRANCES
Deleted
<PAGE> 219
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SCHEDULE 4: ESTOPPEL CERTIFICATE
## ("Lessee") under the Lease ("Lease") dated ##, 199 ## and made with ##
("Lessor"), hereby certifies that:
1 It is the Lessee under this Lease; that attached hereto as
Annexure "A" is a true and correct copy of this Lease; that said
Lease is now in full force and effect and has not been amended,
modified or assigned except as disclosed or included in Annexure
"A"; and that said Lease constitutes the entire agreement between
the Lessor and the Lessee.
2 Except as disclosed or included in Annexure "A":-
- there exist no defences or set offs to enforcement of this
Lease;
- to the best of the Lessee's knowledge there are, as of the
date hereof, no breaches or unremedied defaults on the part
of the Lessee or the Lessor thereunder; and
- the Lessee has not received written notice of any prior
assignment, hypothecation, subletting or other transfer of
the Lessor's interest in this Lease.
3 The Rent for the current Lease Year under this Lease is $_______.
All Rent which is due has been paid, and there are no unpaid
Additional Charges owing by the Lessee under this Lease as of the
date hereof. No Rent or other items (including without limitation
security deposit and any impound account or funds) have been paid
by the Lessee in advance under this Lease except for the security
deposit held by the Lessor a charge on a rent deposit account in
the amount of $ ____ and the monthly instalment of Rent that
became due on [ ].
4 The Lessee has no current claim against the Lessor for the return
of any security deposit or prepaid Rent except as provided in
paragraph 3 of this Certificate.
5 The Lessee has not, and to the best of the Lessee's knowledge the
Lessor has not begun any action, or given or received any notice
for the purpose of termination of this Lease.
6 This Estoppel Certificate has been requested by the Lessor under
Part 20 clause 20.1 of this Lease and for the benefit of
__________ ("Relying Party"). The Relying Party is entitled to
rely on the statements of the Lessee contained in this
certificate.
8. All capitalized terms under herein and not defined herein shall
have the meanings for such terms set forth in the Lease.
Dated: _____________________ the Lessee:
<PAGE> 220
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By:
<PAGE> 221
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SCHEDULE 5: THE OPTION NOTICE
Definitions
"PROPERTY" means ##.
"INTENDING VENDOR" means ##.
"INTENDING PURCHASER" means ##.
"OPTION AGREEMENT" means an Agreement contained in Section 18 of a Lease dated
## 1998 between ## and ## relating to the Leased Property.
The Option contained in the Option Agreement is hereby exercised and the Leased
Property shall be purchased by the Intending Purchaser on the terms set out in
the Option Agreement.
Signed by the Intending Purchaser..............................
<PAGE> 222
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SCHEDULE 6: CONDITIONS OF SALE
1 DEFINITIONS & INTERPRETATION
1.1 DEFINITIONS
Unless the context otherwise requires, the following expressions
shall have the following meanings:-
"ACTUAL COMPLETION" means actual completion of the sale and
purchase under the Option and "DATE OF ACTUAL COMPLETION" shall be
construed accordingly;
"ARREARS" means Rent, and other moneys recoverable by the Lessor
from the Lessee under the Lease but unpaid at Actual Completion
and whether or not demanded;
"BUSINESS DAY" has the meaning given to it in the Standard
Conditions.
"COMPLETION DATE" means the due date for completion ascertained in
accordance with clause 14.2, 14.3 or 16.4 as appropriate and will
be the date upon which the Option is effective;
"HEAD LEASE" means any lease or underlease under which the Lessor
holds any part of the Leased Property and includes all licences,
deeds and other documents supplemental thereto so far as
subsisting on Actual Completion;
"LESSOR'S CONSENT" means the requisite consent in writing or (if
so required by the Lessor) by deed of the Lessor to the assurance
of the Head Lease to the Lessee or a permitted assignee or a final
declaration of the Court to the effect that such consent has been
unreasonably withheld;
"LESSOR" means the Person or company in whom the reversion
expectant upon the term granted by the Head Lease is vested at the
relevant time and includes any superior Lessor;
"LEASE" means the Lease and any Supplemental Lease and any other
deed expressed to be supplemental thereto and includes any
Schedules thereto;
"STANDARD CONDITIONS" means the edition of the Law Society of New
South Wales and Real Estate Institute of New South Wales Contract
for the Sale Of Land which is current at the date of exercise of
the Option;
"OPTION" means any option or election made by the Lessee under or
in accordance with Part 18 of the Lease;
"PRICE" means the Repurchase Price;
<PAGE> 223
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"PROPERTY" means all that the Lessor's reversionary interest in
the Leased Property (excluding any Affected Property which has
ceased to be Leased Property under clause 14.7 before notice to
exercise the Option was given under clause 18.3).
1.2 INTERPRETATION
(a) Words and expressions defined in or to be interpreted in
accordance with any provisions of the Lease shall (save
where a different definition or interpretation is given in
this Schedule in which case such different definition or
interpretation will prevail) bear the same meaning or (as
the case may require) be interpreted in the same way in
this Schedule.
(b) Unless the context otherwise requires, words or expressions
importing the singular number shall be deemed to include
the plural and vice versa, words importing the neuter
gender shall be deemed to include the masculine and
feminine genders and words importing the masculine gender
only shall be deemed to include the feminine and vice
versa.
(c) Unless otherwise stated, a reference to a paragraph is a
reference to a paragraph in this Schedule and a reference
to a subparagraph is a reference to a subparagraph in the
paragraph in or to which reference is made, and a reference
to a Part or clause is a reference to a Part or clause in
the Lease.
(d) References to any Act of Parliament include references to
any statutory modification or re-enactment thereof for the
time being in force and any order, instrument, regulation
or by-law made or issued thereunder.
(e) The headings herein contained shall not be taken into
account in the construction or interpretation of this
Agreement.
2 MATTERS AFFECTING THE PROPERTY: TITLE
(a) The Property is sold subject to and with the benefit of the
Lease so far as subsisting on Actual Completion.
(b) The Property is also sold subject to:-
(i) all matters in the nature of easements, rights,
exceptions, reservations, restrictions, covenants,
conditions and agreements;
(ii) the entries on the Certificate of Title for the
Property by the Registrar General other than any
Encumbrances securing indebtedness of the Lessor or
any Associated Company of the Lessor.
<PAGE> 224
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(iii) any Encumbrances (not securing indebtedness of
the Lessor or any Associated Company of the
Lessor) consented to by the Lessee (such consent
being in writing and signed as a deed) before or
during the Term;
(iv) any permitted Encumbrances; and
(v) any other Encumbrances created before or during
the Term in the operation of the law that do not
relate to indebtedness of the Lessor or any
Associated Company of the Lessor
(vi) (If any part of the Property is leasehold) the
rents reserved by and the covenants and
conditions on the part of the Lessee to be
observed and performed contained in the lease
thereof or in any deed or document supplemental
thereto (in each case) so far as the same are
subsisting and capable of taking effect at Actual
Completion.
(c) The Lessee will be deemed to purchase with full knowledge
of all matters subject to which the Property is sold
thereof and (subject to the provisions of clause 2(g)) will
not raise any enquiry, requisition or objection in relation
thereto.
(d) The Lessee and any permitted assignee to whom the Property
is assured will in the assurance of the Property:-
(i) jointly and severally covenant by way of
indemnity only with the Lessor that the
covenantee and its successors in title will
thenceforth perform and observe:-
(A) the obligations of the Lessor under and
the conditions contained in the Lease; and
(B) the other obligations of the owner of the
Property or otherwise binding on the
Lessor arising under the documents and
matters subject to which the Property is
sold (so far as the same affect the
Property (or any part or parts thereof)
and are still subsisting and capable of
being enforced); and
<PAGE> 225
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(ii) covenant with the Lessor fully and effectually to
indemnify the Lessor in respect of all such
obligations and conditions referred to in this
clause 2(d) and against all actions, claims,
costs, demands, expenses, liabilities and losses
arising in consequence of any breach thereof.
(e) The Lessee shall be deemed to have full notice of both the
present user and permitted uses of the Property and shall
not be entitled to request any information or to raise any
objection or requisition with regard thereto.
(f) The description of the Property is believed and shall be
deemed to be correct and no objection or requisition shall
be made on account of any error or omission in description.
(g) Title to the Property having been deduced to the Lessee
before the date hereof, the Lessee shall accept the same
and shall raise no enquiry, requisition or objection
thereto save in respect of matters arising after the
assurance of the Property to the Lessor.
3 STANDARD CONDITIONS OF SALE
3.1 The sale of the Property is subject to the Standard Conditions
(as hereby varied) so far as the same are not inconsistent
with the terms hereof and subject to the following:
(a) the prescribed rate of interest is 4% per annum above
Westpac Indicator Lending Rate from time to time;
(b) "price" shall include the Price and any sum to be paid for
chattels, fittings or other separate items;
(c) the Property is sold subject to such of the following
matters:
(i) all rates, water, sewerage and drainage
service and usage charges, land tax and
all other periodic outgoings;
(ii) all notices served and orders, demands,
proposals or requirements made by any
local or other public authority (whether
before, on, or after the date of this
Agreement);
(iii) all actual or proposed charges, notices,
orders, restrictions, agreements,
conditions or other matters arising under
any planning legislation.
3.2 The Lessor shall be deemed to be ready and willing to fulfil
its own outstanding obligations under this Agreement:-
<PAGE> 226
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(a) If it could do so but for the default of the Lessee;
and
(b) Even though a mortgage or charge remains secured on
the Property.
3.3 Any amount payable by the Lessee under the Option
shall be paid free of all deductions, withholdings or
set-offs whatsoever.
3.4 For the avoidance of doubt any sum (including any
purchase money) or other consideration payable under or by
virtue of the Option shall to the extent that GST is
chargeable thereon be (and be deemed to be) exclusive of GST
which tax shall be payable by the party obliged to pay such
sum or other consideration and which shall be payable on the
due date for payment of such sum or consideration (as the
case may be).
3.5 If any part of the Property is leasehold the obligations of
the Lessor and the Lessee for the assurance of that part
under the Option are conditional on the obtaining of the
Lessor's Consent.
3.6 The Lessor shall as soon as practicable after exercise of the
Option apply for and use its reasonable endeavours to obtain
the Lessor's Consent duly signed or executed (as the case
may require) but such obligation shall not extend to the
execution of any works of repair or redecoration and shall
not unless reasonably required by the Lessee and without
cost to the Lessor (the Lessee paying the Lessors proper and
reasonable costs) include taking court proceedings.
3.7 The Lessee shall promptly:-
(a) supply all such references and information as the
Lessor may reasonably require, including in relation
to any proposed surety, in order to consider the
Lessor's application for the Lessor's Consent;
(b) comply with the Lessor's and their respective
Solicitors' reasonable requirements in relation to the
granting of the Lessor's Consent; and
(c) execute and procure any permitted assignee to execute
a counterpart of the Lessor's Consent incorporating if
so required by the Lessor:-
(i) a covenant by the Lessee and any permitted
assignee to pay the rents reserved by the
Lease and to observe and perform the Lessee's
covenants and the conditions contained in the
Lease; and
(ii) such other covenants by the Lessee and any
permitted assignee as the Lessor may
reasonably require and which may include
covenants by the Purchaser and permitted
assignee as to the execution of works of
repair and redecoration where in the
opinion of the Lessor required to remedy
<PAGE> 227
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any breach of any of the Lessee's covenants or
the conditions contained in the Lease; and
(iii) if so required by the Lessor procure that a
surety or sureties acceptable to the Lessor sign
or execute such counterpart to enter into such
covenants as may be reasonably required by the
Lessor within 5 business days after the
engrossment thereof has been submitted to the
Lessee's Solicitors.
3.8 As soon as reasonably practicable after the obtaining of the
Lessor's Consent the Lessor shall procure that the Lessee is
given notice to the effect that the conditions set out in
clause 3 have been satisfied.
4 NON-ASSIGNMENT
4.1 The Lessee shall not assign except contemporaneously with a lawful
assignment of the Lease and to the same assignee ("PERMITTED
ASSIGNEE") in whole or part the benefit of the Option which is
personal to the Lessee.
4.2 The Lessor shall not be required to execute an assurance of the
whole or any part of the Property to any Person other than the
Lessee named herein or a permitted assignee nor to grant any
overriding lease of the whole or any part of the Property and the
Property shall be assured to the Lessee or a permitted assignee as
a whole by one assurance only.
5 COMPLETION
5.1 Completion of the sale and purchase hereby agreed shall take place
on the Completion Date at the Lessor's solicitors' office or at
such other place as the Lessor may reasonably require, when the
whole of the Price together with the other purchase money shall be
due and payable.
5.2 For the purpose of ascertaining the day of Actual Completion under
this Agreement only every day shall be deemed to end at 2.00 p.m.
so that if, due to the default of the Lessee, Actual Completion is
effected after 2.00 p.m. on any day it shall be deemed to have
been effected on the next following business day and (inter alia)
interest shall accrue accordingly.
5.3 The Lessor shall not be obliged to complete the sale of the
reversion to the Lease in part only nor complete the sale
otherwise than contemporaneously with completion of the
<PAGE> 228
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sales under the corresponding provisions of each Supplemental
Lease.
6 CANCELLATION OF REGISTRATIONS
6.1 Upon any rescission or determination of any agreement arising on
exercise of the Option, howsoever arising, the Lessee shall
forthwith, and in any event within 5 business days (in respect of
which time shall be of the essence) of such rescission or
determination, apply for and procure the cancellation of all
caveats and other entries and registrations effected (or for which
an application shall have been made) to protect such agreement and
the interests of the Lessee as purchaser of the Property. The
Lessee shall provide certified true copies of all such
applications for cancellation to the Lessor.
6.2 The Lessee hereby irrevocably appoints the Lessor as its attorney
to act in its name and on its behalf for the purpose of effecting
or procuring such cancellations at the cost of the Lessee in the
event that the Lessee shall fail to fulfil its obligations under
clause 6.1.
6.3 This paragraph shall remain in effect notwithstanding any
rescission or determination of any agreement as aforesaid or of
the Lease.
7 MERGER
The provisions of this Schedule shall remain in full force and
effect in so far as they remain to be observed and performed
notwithstanding Actual Completion.
8 ENTIRE AGREEMENT: LIMITATIONS AS TO WARRANTIES
8.1 The Lessor and the Lessee respectively acknowledge that this
Schedule and the Lease constitute and form the entire contract
between them relating to its subject matter and that if it shall
exercise the Option the Lessee will not exercise the same in
reliance on any representation, warranty or statement (whether
oral, written or implied) made by or on behalf of the Lessor. This
clause shall remain in effect notwithstanding Actual Completion.
8.2 No modification, variation or waiver of any of the provisions of
this Schedule shall, except as otherwise expressly provided, be
effective unless the same is in writing and signed by the party
against which enforcement of such modification, variation or
waiver is sought.
8.3 Any failure of either party hereto at any time to require
performance by the other of any
<PAGE> 229
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provision of this Agreement shall not affect the right of such
party to require performance of that provision.
9 NOTICES
ALL notices given by either party to the other under the Option
shall be served or mailed in accordance with Section 31.
<PAGE> 230
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SCHEDULE 7: OPTION TO PURCHASE RELEVANT ASSETS
1 DEFINITIONS
In this Schedule, unless the context otherwise requires, the following
expressions shall have the following meanings:-
"ACCRUED LEAVE ENTITLEMENTS" means the accrued rights of each Employee whose
employment is transferred to the Lessee under clause 4.7 to sick leave, long
service leave and holiday pay as at Option Completion.
"BUSINESS" means the nursing and/or residential care home businesses carried on
by the Lessee at each of the Leased Properties;
"BUSINESS DAY" means a day (other than a Saturday or a Sunday) on which banks
generally are open for business in Sydney;
"CONSUMABLE" means food, fuel, linen, cleaning supplies and materials, medical
and nursing supplies, medical record supplies, office supplies and other
consumable stores;
"EMPLOYEES" means the employees engaged by Lessee on Option Completion in
connection with the Business;
"ENCUMBRANCE" includes any interest or equity of any Person (including, without
prejudice to the generality of the foregoing, any right to acquire, option or
right of pre-emption) or any mortgage, charge, pledge, lien, assignment,
hypothecations, security interest (including any created by law), title
retention or any other security agreement or arrangement or a rental, hire
purchase, credit sale or other agreement for payment on deferred terms;
"FUTURE HIRE CONTRACTS" means those contracts and other contractual arrangements
which shall or may be entered into by the Lessee or its predecessors in title on
or after the date of completion under which tangible assets shall be supplied to
the Lessee for use in or in connection with the Business by way of replacement
for any Hired Assets or any other Future Hired Assets on hire or other rental,
lease, licence, hire purchase or on other terms such that title does not pass to
the Lessee (provided that the foregoing shall not include or relate to any
tangible assets which would be owned by the Lessee were it not only for any
retention of title or like clause in any original purchase contract);
"FUTURE HIRED ASSETS" means tangible assets the subject of Future Hire
Contracts;
"HIRE CONTRACTS" means those contracts and other contractual arrangements
entered into by or on behalf of the Lessee or its predecessors in title before
the date of the completion under which tangible assets used in or in connection
with the Business at that date other than the Sale Assets have been supplied to
or are now held by the Lessee on hire or other rental, lease, licence, hire
<PAGE> 231
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purchase or on other terms such that title thereto does not pass or has not at
completion passed to the Lessee (provided that the foregoing shall not include
or relate to any tangible assets which would have been owned by the Lessee were
it not only for any retention of title or like clause in any original purchase
contract);
"HIRED ASSETS" means tangible assets the subject of Hire Contracts;
"LEASE" means this Lease;
"THE LESSEE'S PERSONAL PROPERTY" has the meaning ascribed to it in the Lease;
"LESSOR", except in clause 2.1, includes its nominee where the context permits.
"THE LESSOR'S PERSONAL PROPERTY" has the meaning ascribed to it in the Lease;
"THE LESSOR'S SOLICITORS" means the solicitors to the Lessor being at present
Phillips Fox of 255 Elizabeth Street, Sydney;
"OPTION" means the Option granted under paragraph 2.1 of this Schedule;
"OPTION COMPLETION" means completion of the sale and purchase of the Relevant
Assets under the Option;
"OPTION PRICE" means the option price specified in paragraph 3.1;
"PROPERTIES" means the properties described in the Lease;
"RELEVANT ASSETS" has the meaning ascribed to it in paragraph 2.2 of this
Schedule;
"SALE ASSETS" means the Properties and the Lessee's Personal Property;
"THIRD PARTY" has the meaning ascribed to it in paragraph 4.10(1);
2 GRANT OF OPTION
2.1 GRANT OF OPTION
In consideration of the payment by the Lessor to the Lessee of the
sum of $1 (receipt of which is hereby acknowledged) the Lessee
irrevocably and unconditionally grants to the Lessor or its
nominee the right, exercisable as provided in paragraph 2.3, to
purchase such of the Relevant Assets specified by the Lessor, for
the Option Price specified in paragraph 3.
2.2 SUBJECTS OF OPTION
<PAGE> 232
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(a) In this Schedule, the "RELEVANT ASSETS" comprise
(i) all the assets (including goodwill and book
debts) which shall as at the date on which notice
is given to exercise the Option be owned and
solely used by the Lessee in connection with the
Business at the Properties or any of them that
were subject to the Lease immediately before its
termination, excluding only (i) any rights of the
Lessee against third parties not arising out of
or in connection with the Relevant Assets so far
as acquired by the Lessor under the Option; (ii)
any intellectual property documents, manuals,
reports and other information developed by the
Lessee in connection with its operations in
Australia including (without limitation) patient
satisfaction surveys, employee handbooks,
corporate financial statements and quality
assurance policies and procedures; (iii) all
accounting, financial and taxation records which
relate to the Business (in whatever form) which
are required by statute or other legal
requirements to be retained; (iv) all cash in
hand or at the bank; and (v) for the avoidance of
doubt, the Lessee's Personal Property (but
excluding the Residents' Personal Property);
(ii) all the Hired Assets and Future Hired Assets; and
(iii) Consumables
2.3 EXERCISE OF OPTION
The Lessor may exercise the Option in relation to all the Relevant
Assets or all the Relevant Assets except the benefit of any
contract(s) specified by the Lessor by notice in writing given to
the Lessee either before or within the period which is the later
of (i) 30 days after the termination (for whatever reason and
howsoever effected) of the Lease and (ii) 30 days after the last
to occur of the delivery of the list, statement of values and
information and the provision of the answers to the Lessors
enquiries, all as referred to in paragraph 2.4, but the Option
shall expire (and any exercise of the Option shall be void) if the
Lessee shall complete the purchase of the Properties encompassed
within the Lease immediately before its termination. If the Lessee
shall complete the purchase of less than all the Properties, the
Option shall expire (and to such extent only any exercise of the
Option shall be void) with respect to those of the Relevant Assets
owned and used in the Business to the extent that it is operated
at those Properties which immediately before the expiration of the
Lease were subject to it (and to such extent only any exercise of
the Option shall be void). The Lessee undertakes to the Lessor
that it will not, after the exercise of the Option and pending
Option Completion, remove any of the Relevant Assets from the
Properties.
<PAGE> 233
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2.4 PARTICULARS OF RELEVANT ASSETS
At least 30 days before the termination of the Lease or (if
termination shall be due to forfeiture) forthwith after
termination, the Lessee shall deliver to the Lessor a true and
complete list of all Relevant Assets including a statement of the
full face value of all its book debts and the depreciated book
value of all other Relevant Assets (other than goodwill, the Hired
Assets and the Future Hired Assets), together with such other
information concerning the Relevant Assets and the Business as the
Lessor shall require. The Lessee shall promptly respond to any
enquiries which the Lessor shall raise in relation to such list,
statement of values or information. The Lessor shall be entitled
to treat any asset not so listed which would otherwise be included
in the Relevant Assets as not one of the Relevant Assets.
3 OPTION PRICE
3.1 AMOUNT
The Option Price shall be the sum of $1 for goodwill, nil for the
Hired Assets and the Future Hired Assets, the face value of the
book debts, the cost price of the Consumables and the depreciated
book value of the other Relevant Assets, and in every case shall
be inclusive of GST, if any.
3.2 DISPUTES
Any disputes, differences or questions arising from the provisions
of this paragraph shall at the request of either the Lessor or the
Lessee be referred to an independent chartered accountant agreed
upon by both of them or (in default of agreement) nominated (at
the request of either of them) by the President for the time being
of the Institute of Chartered Accountants in Australia, which
independent chartered accountant shall act as an expert and not as
an arbitrator and his fees and expenses in so acting shall be
borne between the Lessee and the Lessor as he directs. Each of the
parties hereto agrees to be bound by the decision of such
independent chartered accountant which shall be final and binding
accordingly (save in respect of manifest error).
4 OPTION COMPLETION
4.1 DATE AND PLACE OF OPTION COMPLETION
Subject to exercise of the Option the Lessee and the Lessor shall
be bound to complete the sale and purchase of the Relevant Assets
on the later of (a) service of the notice of exercise and (b) the
termination (for whatever reason and howsoever effected) of this
Lease (other than and to the extent of termination upon completion
of a purchase of the Leased Property by the Lessee under the
Default Option or the Option (or in either case on the next
succeeding Business Day if Option Completion would otherwise fall
on a
<PAGE> 234
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non-Business Day). Option Completion shall take place at the
offices of the Lessor's Solicitors or at such other place as the
parties shall agree.
4.2 OPTION COMPLETION OBLIGATIONS
4.2.1 Upon Option Completion:-
(a) the Lessee shall deliver or cause to be delivered to the
Lessor:-
(i) all those Relevant Assets capable of passing by
delivery, including any assets leased by the
Lessee, together with all documents of title
relating thereto;
(ii) an assignment of goodwill in such form as the
Lessor shall reasonably require; and
(iii) assignments of the Lessee's books debts (if
purchased), contracts (including contracts, to
the extent lawfully assignable, with or for the
care of patients) to the extent that the Lessor
is purchasing them, and intellectual property
rights, in such respective forms as the Lessor
shall reasonably require;
(iv) the Lessor may agree that the assignments
referred to at (b) and (c) above shall be
delivered within a period, specified by the
Lessor, after Option Completion.
4.2.2 The Lessor shall pay the Option Price to the Lessee in cash:
provided that the Lessor shall not be obliged to pay at Option
Completion that part of the Option Price which relates to book
debts which have at the date of Option Completion been outstanding
for 60 days or more (the Option Price for such book debts being
paid only if, when and to the extent that the same are paid).
4.2.3 If any book debt is not paid in full within 3 months of Option
Completion then in respect of each outstanding book debt the
Lessee must take an assignment of the book debt
at its own cost against payment by the Lessee to the Lessor of an
amount equal to the amount of the book debt.
4.3 COVENANTS BY THE LESSEE
The Lessee covenants with the Lessor that:-
(i) it has full power and authority to grant the Option in
respect of the Relevant Assets upon the terms and
conditions of this Schedule; and
(ii) at Option Completion the Relevant Assets (including the
Hired Assets and the
<PAGE> 235
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Future Hired Assets) will be sold to the Lessor as
beneficial owner and free of any Encumbrances (and the
Lessee shall accordingly procure unencumbered title to the
Hired Assets and the Future Hired Assets to enable it to
fulfil this covenant with respect to the Hired Assets and
the Future Hired Assets).
4.4 PENDING THIRD PARTY CONSENTS
The Lessee shall use all reasonable endeavours without payment of
a premium to obtain all such consents as may be necessary for the
transfer to the Lessor with effect from Option Completion of all
the Relevant Assets and the Lessee declares itself with effect
from Option Completion trustee for the Lessor in respect of all
such property and assets until the same shall with any necessary
consents from third parties have been finally assigned to the
Lessor and the Lessee undertakes that until completion of such
assignments it will with effect from Option Completion act under
the direction of the Lessor and as its agent in all matters
relating to such property and assets and shall (with effect as
aforesaid) be and be entitled to be full and effectively
indemnified by the Lessor in so acting accordingly.
4.5 TREATMENT OF CONTRACTS
In respect of any contracts comprised in the Relevant Assets and
not excluded therefrom by the Lessor ("such contracts"):-
(a) the Lessee shall on or with effect from Option Completion
assign or hold to the order of the Lessor or procure the
assignment to the order of the Lessor of all such contracts
which are capable of assignment without the consent of
other parties;
(b) in the case of those of such contracts not so capable of
assignment the Lessee shall, as soon as practicable
following Option Completion, use all reasonable
<PAGE> 236
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endeavours to obtain all necessary consents without payment
of a premium for the assignment of the same or to arrange
the novation thereof; and
(c) unless and until such consents are obtained or novation is
effected the Lessee shall, at the option of the Lessor,
following Option Completion either:-
(i) unless contractually prevented from so doing,
subcontract the same to the Lessor on the same
terms (mutatis mutandis) and for the same
remuneration as apply to such contracts in
question; or
(ii) act in connection therewith in all respects as
the Lessor may from time to time reasonably
direct, and so that (without prejudice to the
generality of the foregoing) the Lessor shall
perform the obligations and liabilities arising
under such contracts in question so far as any
such obligation or liability arises after Option
Completion (provided that no such obligation or
liability is attributable to a breach of duty or
contract of the Lessee before Option Completion)
and the full benefit of all contractual rights,
benefits and claims under this Lease whether
arising before or after Option Completion shall
vest in and be held on trust by the Lessee for
the Lessor absolutely. Provided that the Lessee
shall in all matters be and be entitled to be
fully and effectively indemnified as the Lessor
in so acting in accordance with the Lessor's
directions.
4.6 COVENANT BY THE LESSOR
The Lessor covenants with the Lessee that upon Option Completion
the Lessor will, to the extent the other parties thereto agree,
perform and observe all contracts comprised in the Relevant Assets
and not excluded therefrom by the Lessor and the Lessor will
indemnify the Lessee against loss suffered by the Lessee arising
from any breach or non-performance by the Lessor occurring on or
after the date of Option Completion or any claim in respect of
such matters.
4.7 EMPLOYEES
(a) The Lessor may offer in writing to employ all of the
Employees with effect from Option Completion, on the terms
and conditions that the Lessor considers appropriate.
(b) The Lessee must release the Employees who accept the offer
of employment with the Lessor ("TRANSFERRING EMPLOYEES")
from their employment with the Lessee with effect from
Option Completion.
(c) The Lessee must pay all amounts then due to each of the
Transferring Employees in respect of remuneration up to
Option Completion other than Accrued Leave
<PAGE> 237
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Entitlements
(d) From Option Completion the Lessor must assume the Lessee's
obligations to pay the Transferring Employees their Accrued
Leave Entitlements.
(e) On Option Completion the Lessee must pay to the Lessor or
allow the Lessor to set off against the Option Price an
amount equal to the monetary value of the Accrued Leave
Entitlements as at Option Completion.(f)The Lessee
covenants with the Lessor that the Lessee will indemnify
the Lessor and hold the Lessor harmless against all costs
claims expenses and liabilities whatsoever arising in
connection with any claim made by or on behalf of any
Employee (including, without limitation, any claim for a
redundancy payment, damages for breach of contract or
compensation for unfair dismissal) insofar as and to the
extent that the cause of action giving rise to such claim
arises (wholly or in part) during that person's (or his/her
relative's) period of employment by the Lessee or any
subsidiary of the Lessee or any other Person for the time
being carrying on the Business before such transfer
(provided that the indemnity contained in this paragraph
4.7 shall not extend to claims to the extent of claims
arising during or in respect of any period of employment by
the Lessor);
and against all legal costs and expenses reasonably
incurred by the Lessor in settling contesting or dealing
with any such claim.
4.8 (a) The Lessee covenants with the Lessor that if it shall not make
contributions to any retirement benefits scheme which could
have any unfunded liabilities.
(b) In the event that any Transferring Employee brings a claim
against the Lessee or the Lessor arising out of or in
connection with the transfer his or her employment to the
Lessor, the Lessor and the Lessee shall at their own
respective expense give to the other as soon as practicable
after any request therefor all co-operation, assistance and
information which may be reasonably relevant to the claim.
(c) The Lessee hereby agrees to assign to or otherwise hold for
the Lessor with effect from Option Completion the benefit of
any confidentiality or other undertakings or restrictions
given to the Lessee by any present or former employees of the
Lessee in the Business where such undertakings or restrictions
or the benefit thereof are not novated to or otherwise vested
in the Lessor by virtue of the Regulations and accordingly the
Lessee hereby agrees pending formal assignment or novation of
the same and at the request of the Lessor to take such steps,
actions and proceedings as the Lessor shall reasonably require
to enforce such undertakings and restrictions (or any of them)
for the benefit and at the cost of the Lessor.
4.9 INDEMNITY
<PAGE> 238
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The Lessee acknowledges and agrees with effect on and from Option
Completion that the Lessor shall not assume or have any liability
or obligation in respect of the Business and agrees to indemnify
the Lessor and holds it harmless against any such obligation or
liability.
4.10 ASSIGNMENT
The Lessor may assign its rights under the Option to any Person to
whom it shall lawfully transfer the reversion of the Lease.
4.11 SALE OF THE LESSEE'S INTEREST IN THE BUSINESS
(a) In this paragraph 4.11 "Third Party" means any Person or
persons who whether by purchase or some other event shall
before the expiry of the later period referred to in
paragraph 2.3 (the "Expiry Date") become entitled to the
interest of the Lessee in the Business or any such part of
the Business as is referred to in paragraph 4.11(b).
(b) The Lessee covenants with the Lessor that it shall not,
until after the Expiry Date, sell or otherwise dispose of
all or any part of the Business, except that this covenant
shall not prevent the Lessee -
(i) from selling or realising current assets in the
ordinary course of the Business; or
(ii) from selling with the prior written consents of
the Lessor the whole of its interest in the
undertaking, assets and goodwill of the Business
or the whole of its interest in that part of any
Business as shall be carried on at any individual
Property or Properties, but subject in the cases
referred to in this paragraph (b) to the Lessee
complying with paragraph 4.11(c).
(c) If the Lessee shall sell its interest in the Business or
any part of the Business as permitted by paragraph 4.11(b),
or the same shall as a consequence of some other event
become vested in a Third Party, the Lessee shall procure
that the option shall continue to be enforceable by the
Lessor against the Third Party and shall take all necessary
steps as shall be required by the Lessor to ensure that
upon the subsequent exercise of the Option the Business (or
such part, as the case may be) shall be sold to the Lessor
by the Third Party and so that the covenant in paragraph
4.11(b) and the other provisions of this paragraph 4.11
shall apply and that the Option shall be binding on and
capable of enforcement against all owners of the Business
(or any such part thereof, as the case may be) down to and
including the Expiry Date and it is agreed that the Lessee-
(i) shall give not less than 30 Business Days' notice
to the Lessor of the
<PAGE> 239
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Lessee's intention to sell its interest in the
Business (or any such part thereof, as the case
may be) to the Third Party; and
(ii) shall procure that the Third Party shall
immediately upon completing any such sale and
before the grant of any other interest in the
Business (or any such part thereof, as the case
may be) execute and deliver to the Lessor a deed
of covenant in the form set out in Schedule 9 to
this Schedule with such modifications as the
Lessor shall in its absolute discretion require.
4.12 THE LESSOR'S REMEDIES
Without prejudice to any other rights or remedies which the Lessor
may have, the Lessee acknowledges and agrees that damages would
not be an adequate remedy for any breach of the Lessee's
obligations in connection with the Option and the Lessor shall be
entitled to the remedies of injunction, specific performance and
other equitable relief for any threatened or actual breach of such
obligations. Nothing herein contained shall be construed as
prohibiting the Lessor from pursuing any other remedies available
to it, either at law or in equity, for such breach of threatened
breach, including specific performance and recovery of monetary
damages.
4.13 PERPETUITY PERIOD
The perpetuity period applicable to the Option shall be eighty
(80) years from the date of this Lease.
<PAGE> 240
- -124-
SCHEDULE 9
THIS DEED OF COVENANT is made the day of
BETWEEN
(1) [the Third Party] of [
] (the "Vendor") and
(2) Premier Care Australia Pty Limited care of Phillips Fox 255
Elizabeth Street, Sydney, New South Wales, Australia (the Lessor")
WHEREAS
A This Deed is entered into under the obligations contained in the
Lease (the "Lease") dated 1998 and made amongst the Lessor (1) and
- - (2) by which inter alia the Lessor is entitled to
purchase the Business (as there defined) upon and subject to the
conditions there contained.
B The Vendor has become the owner of the Business [relevant part of
the Business].
THIS DEED WITNESSES as follows -
The Vendor [jointly and severally] covenants with the Lessor in respect of the
Business that the Vendor will at all times after the date of this deed observe
and perform all of the covenants, conditions and obligations on the part of the
Lessee (as defined in the Lease) contained in the Lease in connection with the
Option and will do and perform all acts and things as shall be necessary or
appropriate to enable the Purchaser to exercise its right to purchase the
Relevant Assets (as defined in the Lease) in accordance with the terms and
conditions of the Lease.
This deed shall be governed by, and construed in accordance with the laws of New
South Wales.
IN WITNESS etc.
<PAGE> 241
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EXECUTED AS A DEED
Signed, sealed and delivered by the attorney of
PREMIER CARE AUSTRALIA PTY LIMITED under
power of attorney registered Book No
----------
in the presence of:
- ------------
. . . . . . . . . . . . . . . . .
Signature of attorney
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Signature of witness Office held
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Name of witness (print) Name of attorney (print)
The common seal of MORAN HEALTH CARE
(AUSTRALIA) PTY LIMITED (as Lessee) is
affixed in accordance with its articles
of association:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Signature of authorised person Signature of authorised person
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Office held Office held
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Name of authorised person (print) Name of authorised person (print)
<PAGE> 242
- -126-
The common seal of MORAN HEALTH
CARE GROUP PTY LIMITED (as Guarantor) is affixed
in accordance with its articles of association:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Signature of authorised person Signature of authorised person
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Office held Office held
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Name of authorised person (print) Name of authorised person (print)
<PAGE> 243
LEASE GUARANTEE
MORAN HEALTH CARE GROUP PTY LIMITED
AND
PREMIER CARE AUSTRALIA PTY LIMITED
[PHILLIPS FOX LAWYERS LOGO]
255 Elizabeth Street Sydney NSW 2000 Australia
Tel +61 2 9286 8000 Fax +61 2 9283 4144 DX 107 SYDNEY
Email: [email protected]
WWW site: http://www.PhillipsFox.com.au
Ref: KJH 940906 VAC
<PAGE> 244
GUARANTEE PARTICULARS
DATE:
PARTIES:
GUARANTOR: MORAN HEALTH CARE GROUP PTY LIMITED (ACN 008 585 242)
of 13-15 Bridge Street, Sydney
LESSOR: PREMIER CARE AUSTRALIA PTY LIMITED (ACN 069 875 476) c/-
Phillips Fox, 255 Elizabeth Street, Sydney
THE LEASE: The Lease dated the date of this Guarantee to which the
Lessor and the Lessee are parties in respect of the property
short particulars of which are set out in Appendix 2.
LESSEE: MORAN HEALTH CARE (AUSTRALIA) PTY LIMITED (ACN 082 466
456) of 13-15 Bridge Street, Sydney
LETTER OF CREDIT: 50%
PERCENTAGE OF
ANNUAL RENT
SUPPLEMENTAL 50%
LETTER OF CREDIT:
PERCENTAGE OF
ANNUAL RENT
TANGIBLE: NET WORTH $75 million
THRESHOLD
LESSEE NOTICE 13 Bridge Street, Sydney NSW 2000
DETAILS:
LESSOR NOTICE Premier Care Australia Pty Limited
DETAILS: C/- Phillips Fox
255 Elizabeth Street
Sydney NSW 2000
with a copy to:
Omega Worldwide Inc
905 West Eisenhower Circle
Suite 110
Ann Arbor MI 48103
USA
and to:
Omega (UK) Limited
145 Cannon Street
London EC4N 4BP
<PAGE> 245
UNITED KINGDOM
--------------
THIS LEASE GUARANTEE is made on the date stated in the Particulars BETWEEN the
parties specified in the Particulars:
RECITALS
A. The Guarantor is the beneficial owner of the entire share
capital of the Lessee.
B. The Lessee has entered into a conditional agreement for lease
under which it is anticipated that the property referred to in the
Schedule will be leased to the Lessee by the Lessor.
C. The Guarantor anticipates that the lease referred to above may be
supplemented by the addition of further properties.
D. As a material inducement to the Lessor to enter into the lease
referred to in recital B above, the Guarantor has agreed fully and
unconditionally to guarantee, both payment of sums due under such
lease and the performance of the covenants and conditions
contained in such lease on the part of the Lessee and to enter
into the covenants contained in this Guarantee including the
personal covenant contained in Clause 7.
AGREEMENT
<PAGE> 246
- -3-
I. DEFINITIONS AND INTERPRETATION
A. DEFINITIONS
1. In this Guarantee unless the context otherwise requires words and
expressions defined in this Clause or in the Particulars shall
have the respective meanings attributable to them:
"ALUT COMPANY" means the Lessor, Principal and any person who at
any time prior to, on or after the date of this Charge is a
Related Body Corporate of the Lessor or of Principal;
"BUSINESS DAY" means any day other than a Saturday, a Sunday,
Christmas Day, Boxing Day, Good Friday or a day which is a bank
holiday in New South Wales;
"COLLATERAL SECURITY DOCUMENTS" means any present or future
guarantee, indemnity, security, letter of credit, rent deposit or
other document or instrument which contains or evidences an
obligation to pay, discharge or be responsible, directly or
indirectly, for the Guaranteed Liabilities or any of them and any
present or future Security Interest which secures the Guaranteed
Liabilities or any of them;
"DAMAGES" means any amount payable as agreed compensation for the
termination of the Lease under the terms of the Lease;
"EFFECTIVE DATE" means the date which is 12 months after the date
of the Lease;
"ELIGIBLE BANK" means a bank in Australia the outstanding,
unsecured, unsubordinated and unguaranteed short term debt
obligations of which are for the time being rated A-1+ or higher
by Standard & Poors Corporation;
"GROUP COMPANY" means the Lessee, the Guarantor and any person who
at any time prior to, on or after the date of this Charge is a
Related Body Corporate of the Lessee or the Guarantor;
"GROUP LEASE" means the Lease and each other present or future
lease:
a. which is granted by a ALUT Company to a Group Company prior
to, or on after the date of this Charge;
b. otherwise in relation to which, at any time prior to, on or
after the date of this Charge, a ALUT Company is the
landlord and a Group Company is the tenant; or
c. which the Lessor and the Guarantor otherwise have agreed or
may agree in writing shall be designated a Group Lease;
"GUARANTOR" means the party named as "Guarantor" in the
Particulars;
<PAGE> 247
- -4-
"GUARANTEED LIABILITIES" means the moneys, liabilities and
obligations (whether actual or contingent, present or future and
whether incurred as principal or as surety) which are at any time
guaranteed or the subject of an indemnity under this Guarantee or
which are expressed to be guaranteed or to be the subject of an
indemnity under this Guarantee;
"LEASE" means the lease short particulars of which are set out in
the Lease description contained in the Particulars and any lease
entered into pursuant to Clause 16;
"LEASED PROPERTY" means all that land and buildings demised by the
Lease as more particularly described in the Lease;
"LESSEE" means the company named as "Lessee" in the Particulars;
"MANAGEMENT FEES" means fees paid to any person (not being an
officer, director or employee of the payer) for the management of
a registered nursing home/residential care facility and any other
health care related facility to a maximum amount of 4% of the
Lessee's gross revenue per annum (calculated in accordance with
General Standards).
"OVERDUE RATE" means on any date, a rate equal to 5 percentage
points above the average bid rate for bills (as defined in the
Bills of Exchange Act 1901 (Cwth)) which is displayed on the page
of the Reuters Monitor System designated "BBSY" but in no event
greater than the maximum rate then permitted by applicable law;
"PARTICULARS" means the descriptions and terms appearing on the
preceding pages headed "Charge Particulars" (and which form part
of this Charge);
"PRINCIPAL" means Assisted Living Unit Trust;
"RELATED BODY CORPORATE" has the same meaning as that given under
the Corporations Law;
"RELEVANT DOCUMENTS" means each of the Group Leases and each
agreement pursuant to which any Group Lease has been or may be
entered into and each deed, agreement or other document entered
into pursuant to any Group Lease or any such agreement;
"RENT" means all amounts reserved as and payable as rent under the
terms of the Lease including, for the avoidance of doubt, under
all Supplemental Leases thereto;
"SECURITY INTEREST" means any mortgage, charge, assignment,
pledge, lien, standard security, right of set-off, hypothecation,
encumbrance, priority or other security interest (whether fixed or
floating) including, without limitation, any "hold-back" or
"flawed asset" arrangement, any preferential right, any retention
of title, deferred purchase, leasing, sale or purchase, sale and
leaseback arrangement or trust agreement, declaration of trust,
trust arising by operation of law and any option or agreement for
any of the same
<PAGE> 248
- -5-
or any arrangement which has substantially the same commercial
or substantive effect as the creation of security;
"SUPERIOR LESSOR" means the holder of the immediate reversionary
interest in any lease from which the Lease is demised;
"SUPPLEMENTAL LEASE" means any lease or underlease entered prior
to on or after the date of this Guarantee supplemental to or
entered into pursuant to the Lease whether or not in respect of
the same property;
"TANGIBLE NET WORTH" means in relation to the Guarantor, the
consolidated net worth of the Guarantor and its Related Bodies
Corporate calculated in accordance with accounting principles
generally accepted in Australia but always excluding the amount of
any unamortised debt discount and expense, deferred charges,
deferred taxation recognised as an asset, goodwill, deferred
pre-opening costs, patents, trademarks, service names, copyrights,
other intellectual property rights, organisational expenses,
operating rights, any write-up of the value of unrealised real
estate assets and any revaluation reserve; and
"TANGIBLE NET WORTH THRESHOLD" means the amount referred to in the
description of the Tangible Net Worth Threshold contained in the
Particulars or such other amount as the Guarantor and the Lessor
may agree.
B. INTERPRETATION
1. In this Guarantee:
a. clause headings are included for convenience only and do
not affect the construction of this Guarantee;
b. words denoting the singular include the plural and vice
versa; and
c. words denoting one gender include each gender and all
genders.
2. In this Guarantee, unless the context otherwise requires,
references to:
a. persons include references to natural persons, firms,
partnerships, companies, corporations, associations,
organisations and trusts (in each case whether or not
having a separate legal personality);
b. documents, instruments and agreements (including this
Guarantee and any other Relevant Documents and any other
document referred to in this Guarantee and
<PAGE> 249
- -6-
the other Relevant Documents) are references to such
documents, instruments and agreements as modified, amended,
varied, supplemented or novated from time to time;
c. the word "including" shall be construed as meaning
"including without limitation" and the words "other" and
"otherwise" shall not be construed eiusdem generis with any
foregoing words where a wider construction is possible;
d. the "Lessor" includes references to its successors and
successors in title and assigns including any person
deriving title under the Lessor or in favour of whom the
Lessor may assign, transfer, novate, dispose of, grant any
interest in or declare a trust in respect of the whole or
any part of the right, title, interest or benefit of the
Lessor in, to and under this Guarantee or the Group Leases
or any of them;
e. the Lessee and the Guarantor include reference to their
successors and, in the case of the Lessee, to its
successors in title and assigns in respect of the whole or
any part of the Leased Property;
f. Recitals, Clauses, the Schedule and the Appendix are
references to the recitals to, clauses of and the schedule
and appendix to this Guarantee;
g. the "Lease" are to the same as it may from time to time
(whether or not with the consent of the Guarantor) be
amended, modified, varied, supplemented, novated, extended
or renewed and include any Supplemental Lease or other
document supplemental to or entered into pursuant to the
Lease (whether or not with the consent of the Guarantor)
including, without limitation, any guarantee entered into
by the Lessee in relation to an assignment of the Lease;
h. statutory provisions (where the context so admits and
unless otherwise expressly provided) are construed as
references to those provisions as respectively amended,
consolidated, extended or re-enacted from time to time, and
to any orders, regulations, instruments or other
subordinate legislation made under the relevant statute;
i. a time of day is a reference to Sydney time; and
j. words and expressions defined in the Lease but not
expressly defined in this Guarantee shall in this
Guarantee, unless the context otherwise requires, have the
meaning ascribed to them in the Lease.
3. The Schedule and Appendix to this Guarantee form part of this
Guarantee.
<PAGE> 250
- -7-
II. GUARANTEE
A. The Guarantor hereby unconditionally and irrevocably:
a. guarantees and covenants to the Lessor that the Lessee will
duly and promptly pay all Rent and all other sums or
amounts of whatsoever nature which may now or at any time
hereafter be or become payable by the Lessee under the
Lease (subject to such waivers and extensions as may be
agreed from time to time in the absolute discretion of the
Lessor);
b. guarantees and covenants to the Lessor that the Lessee will
duly and promptly perform when due (subject to such waivers
and extensions as may be agreed from time to time in the
absolute discretion of the Lessor) each and every one of
the terms, conditions and covenants to be observed and
performed by the Lessee under the Lease, and including all
indemnification obligations, repurchase obligations,
insurance obligations, all obligations to operate, rebuild,
restore or replace any facilities or improvements now or
hereafter located on the Leased Property and the
obligations of the Lessee to pay any amounts of Damages.
The Guarantor hereby further unconditionally and
irrevocably undertakes to the Lessor that in the event of
the failure of the Lessee to pay any such Rent or any such
other sums or amounts payable by the Lessee or to render
any such other performance required of the Lessee under the
Lease when due, the Guarantor shall forthwith on demand pay
such Rent or such other provisions of the Lease to be
performed by the Lessee thereunder. As a separate and
independent obligation the Guarantor further undertakes
that it will on demand indemnify the Lessor on a full and
unqualified indemnity basis against, and keep indemnified
the Lessor against all actions, claims, costs, demands,
expenses, liabilities, losses and damages incurred by the
Lessor as a result of the non-payment or non-performance by
the Lessee of its obligations to pay such Rent or such
other sums or amounts or to perform any such other
provision of the Lease to the full extent provided under
the Lease.
B. This Guarantee is a continuing security and shall remain in full
force and effect until the Guaranteed Liabilities have been paid,
discharged or satisfied in full notwithstanding any incapacity of
or any change in the name or style of the Lessor, the Lessee or
the Guarantor or any settlement of account or any other matter
whatsoever.
III. SURVIVAL OF OBLIGATIONS
A. The obligations of the Guarantor under this Guarantee shall not in
any way be released, determined, discharged, reduced or affected
by, and they shall survive and continue in full force and effect
notwithstanding the occurrence of, any of the following or any
combination of the following:
a. any amendment, modification or extension of, or supplement
to, the Lease (and any review of the Rent or other increase
in the Rent);
b. any compromise, release, consent, extension, indulgence,
concession or other
<PAGE> 251
- -8-
action or inaction in respect of any terms of the Lease or
any Collateral Security Document;
c. any substitution or release, in whole or in part, of any
security for this Guarantee which the Lessor may hold at
any time or for any other Collateral Security Document;
d. any neglect, delay or forbearance in the exercise or
non-exercise by the Lessor of any right, power or remedy
under or in respect of the Lease or under or in respect of
any Collateral Security Document or this Guarantee or of
any waiver of any such right, power or remedy;
e. any bankruptcy, insolvency, reorganisation, arrangement,
scheme, composition, liquidation, administration,
dissolution, receivership, winding-up, striking-off, the
entry into a trust deed for the benefit of creditors and
the execution of any distress or diligence against of the
Lessor, the Guarantor, the Lessor or any other person
liable under any Collateral Security Document or any of
their assets or any similar or analogous event or
circumstance, or any change in the constitution, structure
or powers of the same;
f. any limitation of the Lessee's or the Guarantor's liability
which may now or hereafter be imposed by any statute,
regulation or rule of law, or any illegality, irregularity,
invalidity or unenforceability, in whole or in part, of the
Lease or any term thereof;
g. any sale, lease, surrender or transfer of all or any part
of the Leased Property or all or any of the assets of the
Lessee to any other person, firm or entity;
h. any act or omission by the Lessor with respect to any of
the Collateral Security Documents or this Guarantee or any
failure to file, record or otherwise perfect any of the
same;
i. any extensions of time for performance under the Lease or
any Collateral Security Document, whether before or after
cessation or maturity;
j. the release of any collateral lien or the release of the
Lessee from the performance or observation of any of the
agreements, covenants, terms or conditions contained in the
Lease by operation of law or otherwise;
k. the fact that the Lessee or any other person may or may not
be personally liable, in whole or in part, under the terms
of any Lease or any Collateral Security Document to pay any
money judgment or other amount;
l. the failure to give the Guarantor any notice of acceptance,
default or otherwise;
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m. the existence or otherwise of any other Collateral Security
Document now or hereafter executed by the Guarantor or
anyone else in connection with the Lease;
n. any rights, powers or privileges the Lessor may now or
hereafter have against any other person, entity or
collateral;
o. the fact that the Lessee or any person liable under any
Collateral Security Document shall be dissolved or cease to
exist or the Lease is terminated in accordance with the
provisions therein contained; or
p. any other act, omission, matter or thing whatsoever whereby
but for this provision the Guarantor would be exonerated or
released either wholly or in part.
IV. PRIMARY LIABILITY
A. As a separate and independent obligation, the liability of the
Guarantor hereunder to the Lessor shall be primary, direct and
immediate, and the Guarantor is jointly and severally liable with
the Lessee and any other person liable under a Collateral Security
Document for the fulfilment of all the obligations of the Lessee
under the Lease and the Lessor may proceed against the Guarantor:
a. before or in lieu of proceeding against the Lessee or any
other person liable under a Collateral Security Document or
the assets of any such person or any security deposit or
letter of credit; and/or
b. before or in lieu of pursuing any other rights or remedies
available to the Lessor for any reason whatsoever and/or
even if the obligations of the Lessee under the Lease or of
any other person are not enforceable. All rights and
remedies afforded to the Lessor by reason of this Guarantee
or any other Collateral Security Document or by law are
separate, independent and cumulative, and the exercise of
any rights or remedies and the Lessor may exercise its
rights and remedies as often as the Lessor thinks
appropriate.
B. The Lessor shall not be obliged to make any demand on the Lessee
or any other person before enforcing its rights against the
Guarantor and in the event of any default under the Lease, a
separate action or actions may be brought and prosecuted against
the Guarantor whether or not the Lessee or any other person is
joined therein or a separate action or actions are brought against
the Lessee or any other person. The Lessor may maintain successive
actions for other defaults. The Lessor's rights hereunder shall
not be exhausted by its exercise of any of its rights or remedies
or by any such action or by any number of successive actions until
and unless all indebtedness and obligations the payment and
performance of which are hereby guaranteed have been
unconditionally and irrevocably paid and fully performed and the
Lessee shall have no further actual or contingent liability to the
Lessor under the Lease.
V. OBLIGATIONS NOT AFFECTED
<PAGE> 253
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A. In such manner, upon such terms and at such times as the Lessor in
its sole discretion deems necessary or expedient and without
notice to the Guarantor, the Lessor may:
a. amend, alter, compromise accelerate, extend or change the
time or manner for the payment or the performance of any
Guaranteed Liabilities or the liability of the Guarantor
hereunder;
b. extend, amend or terminate the Lease, this Guarantee or any
Collateral Security Document; or
c. take or omit to take any action which would or might result
in the occurrence of any of the events or circumstances
described in Clause 3. No exercise or non- exercise by the
Lessor of any right hereby given to the Lessor, dealing by
the Lessor with the Lessee or any other person liable under
any Collateral Security Document, nor any change,
impairment, release or suspension of any right or remedy of
the Lessor against any person including the Lessee will
affect any of the liabilities or obligations of the
Guarantor hereunder or give the Guarantor any recourse or
offset against the Lessor.
B. Without prejudice to any other protection afforded to the Lessor
under this Guarantee, the Guarantor shall on demand enter into any
deed or document supplemental to the Lease (including without
limitation any Supplementary Lease) for the purpose of
acknowledging that the Guarantor's liabilities and obligations
hereunder will continue in full force and effect notwithstanding
the entering into or execution of such supplemental deed or
document and will apply to the terms of any such supplemental deed
or document once the same has been entered into.
VI. WAIVER
A. The Guarantor hereby irrevocably and unconditionally waives and
relinquishes all rights and remedies accorded by applicable law to
sureties and/or guarantors or any other accommodation parties,
under any statutory provisions, common law or any other provision
of law, custom or practice, and agrees not to assert or take
advantage of any such rights or remedies including, but not
limited to:
a. any right to require the Lessor to proceed against the
Lessee or any other person or to proceed against or exhaust
any security or Collateral Security Document held by the
Lessor at any time or to pursue any other remedy in the
Lessor's power before proceeding against the Guarantor or
to proceed against the Lessee and/or any collateral,
including collateral, if any, given to secure the
Guarantor's obligation held by the Lessor at any time or in
any particular order;
b. any defence including, without limitation, estoppel that
may arise by reason of the incapacity or lack of authority
of any other person or persons;
c. notice of the existence, creation or incurring of any new
or additional indebtedness or obligation or of any action
or non-action on the part of the
<PAGE> 254
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Lessee, the Lessor, any creditor of any Lessee or the
Guarantor or on the part of any other person whomsoever
under this or any other document or instrument in
connection with any obligation or evidence of indebtedness
held by the Guarantor or in connection with any obligation
hereby guaranteed;
d. any defence based upon an election of remedies by the
Lessor which destroys or otherwise impairs the subrogation
rights of the Guarantor or the right of the Guarantor to
proceed against the Lessee for reimbursement, or both;
e. any defence based upon any statute or rule of law which
provides that the obligation of a surety must be neither
larger in amount or in other respects more burdensome than
that of the principal; and
f. any duty on the part of the Lessor to disclose to the
Guarantor any facts the Lessor may now or hereafter know
about the Lessee, regardless of whether the Lessor has
reason to believe that any such facts materially increase
the risk beyond that which the Guarantor intends to assume
or has reason to believe that such facts are unknown to the
Guarantor or has a reasonable opportunity to communicate
such facts to the Guarantor, it being understood and agreed
that the Guarantor is fully responsible for being and
keeping informed of the financial condition of the Lessee
and of all circumstances bearing on the risk of non-
payment or non-performance of the Guaranteed Liabilities.
VII. WARRANTIES AND PERSONAL COVENANT
A. In order to induce the Lessor to enter into the Lease, the
Guarantor warrants that:
a. this Guarantee is executed by the Guarantor at the Lessee's
request; and
b. the Guarantor has established adequate means of obtaining
from the Lessee on a continuing basis financial
information. The Guarantor agrees to keep adequately
informed from such means of any facts, events or
circumstances which might in any way affect the Guarantor's
risk hereunder and the Guarantor further agrees that the
Lessor shall have no obligation to disclose to the
Guarantor information or material acquired in the course of
the Lessor's relationship with the Lessee. The Guarantor
further represents and warrants that:
(1) the Guarantor has full power to enter into and
perform and observe its obligations and covenants
hereunder and has taken all necessary corporate
and other action required to authorise its
execution of this Guarantee and the provisions of
this Guarantee constitute the legal, valid and
binding obligations of the Guarantor;
(2) the Guarantor is duly incorporated and has full
power (so power (so far as is material to this
Guarantee) to carry on its business as conducted
at the date it becomes a party to this Guarantee
and to own its property and other assets and to
enter into and perform and observe its
obligations
<PAGE> 255
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under this Guarantee and it has obtained and will
maintain in full force and effect all necessary
consents, licences and authorities and no
limitation on its powers to borrow or give
guarantees will be executed as a result of this
Guarantee;
(3) the creation of this Guarantee and the
performance and observance of the obligations and
covenants hereunder does not and will not -
- contravene any existing applicable law,
statute, rule or regulation or any
judgment, decree or permit to which the
Guarantor is subject;
- conflict with or result in any breach of
any of the terms of or constitute a
default under any agreement or other
instrument to which it is a party or is
subject or by which it or any of its
property is bound;
- contravene or conflict with any provision
of its constitutional documents; or
- result in the creation or imposition of or
oblige it to create any charge or other
encumbrance on any of its assets, rights
or revenues;
(4) neither the Guarantor nor any of its Related
Bodies Corporate is in default in respect of any
financial commitment or obligation including any
guarantee, indemnity, bond or like obligation or
in breach of any agreement or arrangement or
statutory or other legal requirements;
(5) save for any such matters arising in the ordinary
and normal course of business, neither the
Guarantee nor any of its Related Bodies Corporate
is involved in any action, suit, arbitration or
proceeding nor is any such action, suit,
arbitration or proceeding pending or threatened;
(6) it is not necessary to ensure the legality,
validity, enforceability or admissibility in
evidence of this Guarantee that it or any other
document be stamped, registered, filed,
notarised, recorded or enrolled in New South
Wales or any other jurisdiction and this
Guarantee is in proper form for its enforcement
in Australia and any other applicable
jurisdiction; and
<PAGE> 256
- -13-
(7) no taxes, levies, imposts or duties of whatever
nature are imposed under the laws of New South
Wales or the Commonwealth or any other
jurisdiction on or by virtue of the execution or
delivery by the Guarantor of this Guarantee.
VIII. NO SUBROGATION
A. Until all obligations of the Lessee under the Lease and each of
the other Group Leases have been unconditionally and irrevocably
paid and fully performed and the Lessee shall have no further
actual or contingent liability to the Lessor whether under the
Lease or the other Group Leases, the Guarantor shall have no right
of subrogation and the Guarantor waives any right to enforce any
remedy which the Lessor now has or may hereafter have against the
Lessee and any benefit of, and any right to participate in, any
security now or hereafter held by the Lessor with respect to the
Lease or the other Group Leases.
IX. POSTPONEMENT
A. Until all of the Guaranteed Liabilities and all other moneys,
liabilities and obligations (whether present or future, whether
actual or contingent and whether as principal or surety) due or
owing by the Lessee to the Lessor have been unconditionally and
irrevocably satisfied and discharged in full the Guarantor
undertakes to the Lessor that:
a. it shall not claim or have the benefit of any security,
guarantee or indemnity from the Lessee now or hereafter
held by the Lessor in respect of the Guaranteed Liabilities
or such other moneys, liabilities and obligations or the
liabilities of the Lessee or any other person under any
other Collateral Security Document;
b. it shall not claim in competition with the Lessor in any
liquidation, bankruptcy, administration, arrangement,
scheme or composition with creditors of or concerning the
Lessee unless required to do so by the Lessor;
c. it will pay (to the extent of the aggregate amount of the
Guarantor's liabilities hereunder) to the Lessor an amount
equal to all moneys the Guarantee shall receive by way of
proceeds of any judgment or any distribution from any
liquidator, trustee in bankruptcy, receiver or
administrator of the Lessee; and
d. the Guarantor shall hold in trust (to the extent of the
aggregate amount of the Guarantor's liabilities hereunder)
for the benefit of the Lessor all security rights the
Guarantor may have from time to time over the assets of any
Lessee.
X. NO DELAY
A0 Any payments required to be made by the Guarantor hereunder shall
become due on demand validly made by the Lessor in accordance with
the terms hereof. The Guarantor expressly unconditionally and
irrevocably waives and relinquishes all rights and remedies
accorded by applicable law to guarantors, including without
limitation,
<PAGE> 257
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any extension of time conferred by any law now
or hereafter in effect and any requirement or notice of acceptance
of this Guarantee or any other notice to which such Guarantor may
now or hereafter be entitled to the extent such waiver of notice
is permitted by applicable law.
XI APPLICATION OF PAYMENTS
A0 With or without notice to the Guarantor, the Lessor, in its sole
discretion and at any time from time to time and in such manner
and upon such terms as the Lessor deems appropriate, may apply any
or all payments or recoveries from the Lessee or from any other
person under any other instrument or realised from any security,
in such manner and order of priority as the Lessor may determine,
to any indebtedness, liability or obligation of Lessee with
respect to the Lease, whether or not such indebtedness, liability
or other obligation is guaranteed hereby or is otherwise secured
or is due at the time of such application.
B0 Any payment or recovery in respect of the Guaranteed Liabilities
from the Guarantor or any amount received or recovered by the
Lessor pursuant to Clauses 9 or 10 may be placed in an account of
the Lessor with an Australian trading bank (referred to in this
sub-clause as a "suspense account") (instead of being applied
immediately against the Guaranteed Liabilities) with a view to
preserving the right of the Lessor to prove for the whole of its
claim against the Lessee, the Guarantor or other person and the
credit balance on such suspense account may be applied at such
time as the Lessor shall choose and from time to time in the same
way as such payments or recoveries. This sub-clause shall not
operate to create a trust over the suspense account or any money
standing to the credit of the suspense account.
C0 If during any period there is a credit balance on a suspense
account then the liability of the Guarantor to pay interest on the
Guaranteed Liabilities in respect of such period shall be reduced
to an amount equal to the amount of interest which would have been
payable by the Guarantor on the Guaranteed Liabilities in respect
of such period had the Lessor, upon receipt hereunder of any money
credited to a suspense account, instead applied such money in or
towards discharge of the Guaranteed Liabilities in accordance with
the documents providing for the same and this Guarantee.
D0 If at any time the credit balance of the suspense account exceeds
the amount of the Guaranteed Liabilities and the Lessor is under
no liability or obligation which may give rise to any further
liabilities hereunder then the Lessor shall pay the amount of such
excess to the Guarantor on demand.
XII GUARANTEE DEFAULT
A0 As used herein, the term "Guarantee Default" shall mean one or
both of the following events:
<PAGE> 258
- -15-
a0 the failure of the Guarantor to pay any amount required to
be paid by it hereunder when due; and/or
b0 the failure of the Guarantor diligently and without delay
to observe and perform any covenants, condition or
agreement on its part to be observed or performed, pursuant
to this Guarantee other than as referred to in sub-clause
(a) above.
B0 Upon the occurrence of a Guarantee Default, the Lessor shall have
the right to bring such actions at law or in equity, including
appropriate injunctive relief, as it deems appropriate to compel
compliance, payment or deposit, and among other remedies to
recover its legal fees in any proceeding, including any appeal
therefrom and any post-judgment proceedings.
C0 The Guarantor agrees to pay interest on each amount properly
demanded of it under this Guarantee from the date of such demand
until payment at the Overdue Rate both before and after judgment.
Such interest shall accrue daily and shall be compounded in the
event of it not being punctually paid with quarterly rests but
without prejudice to the Lessor's right to require payment of such
interest when due.
XIII LETTER OF CREDIT
A0 In this Clause 13, "LC" is the figure specified in the term
"Letter of Credit: Percentage of Annual Rent" contained in the
Particulars. For the avoidance of doubt, in calculating the amount
of any Letters of Credit, "LC" is read as a figure rather than a
percentage (so that if "Letter of Credit: Percentage of Annual
Rent" is specified in the Particulars as 50 per cent, LC is read
as "50" and not as "one half").
B0 If "Letter of Credit: Percentage of Annual Rent" is specified as
"zero" or "not applicable" in the Particulars then this clause 13
shall not apply to this Guarantee. If "Letter of Credit:
Percentage of Annual Rent" is not specified in the Particulars
then this Clause 13 shall apply to this Guarantee and LC shall be
read as "50".
C0 On the first anniversary of the commencement date of the Lease,
the Guarantor shall deliver to the Lessee as further security for
the Guaranteed Liabilities a letter of credit (the "Letter of
Credit", which expression shall include any amendment thereto or
any amended or substituted Letter of Credit delivered pursuant to
sub-clause 13.4) issued by a bank which is an Eligible Bank in
favour of the Guarantor in the form contained in the Appendix to
this Guarantee in a principal amount equal to the amount which is
LC per cent of the initial annual Rent under the Lease with an
expiration date not less than one year after the date on which
such Letter of Credit is delivered.
D0 Without prejudice to sub-clause 13.5, if and whenever the Rent
payable under the Lease shall before the expiration of the Letter
of Credit or Replacement Letter of Credit, be increased (including
by reason of the execution of any Supplemental Lease), the
Guarantor shall on or prior to the effective date of such increase
(the "Rent Increase Date"), deliver to the Lessor as further
security for the Guaranteed Liabilities, an amendment to the
Letter of Credit or Replacement Letter of Credit issued by a bank
which is for the time being an Eligible Bank that has the effect
of increasing the
<PAGE> 259
- -16-
principal amount of the Letter of Credit or Replacement Letter
of Credit to an amount equal to the amount which is LC per cent
of such increased annual Rent.
E0 Without prejudice to sub-clause 13.4, not less than 30 days before
to the expiration of the Letter of Credit or any Replacement
Letter of Credit, the Guarantor will deliver to the Lessor a
replacement letter of credit ("Replacement Letter of Credit")
issued by a bank which is for the time being an Eligible Bank. The
Replacement Letter of Credit shall be in the form contained in the
Appendix to this Guarantee and shall be in a principal amount
equal to LC per cent of the annual Rent payable under the Lease as
at the date on which the Replacement Letter of Credit is delivered
and shall have an expiration date not less than one year after the
date on which the Replacement Letter of Credit is delivered. If a
Replacement Letter of Credit is not delivered to the Issuer by the
date which is 30 days before the expiration date of the Letter of
Credit or previous Replacement Letter of Credit pursuant to this
sub-clause 13.5 or an amendment to a Letter of Credit or
Replacement Letter of Credit is not delivered to the Lessor on or
prior to the Rent Increase Date pursuant to sub-clause 13.4, then
the Guarantor agrees that the Lessor shall be entitled to draw
under the Letter of Credit the full outstanding balance of the
principal amount thereof.
F0 All sums drawn by the Lessor pursuant to sub-clause 13.5 shall be
deposited by the Lessor in an interest-bearing account at an
Australian trading bank and the credit balance on the account
(together with the interest accruing thereon) may be applied at
any time from time to time in the same way as payments and
recoveries under this Guarantee as provided by Clause 11.
G0 The foregoing provisions of this Clause shall apply (mutatis
mutandis) to any Replacement Letter of Credit as they do to the
Letter of Credit.
H0 The Guarantor agrees that the Lessor shall be entitled to make one
or more drawings under the Letter of Credit or any Replacement
Letter of Credit at any time or times after any of the Guaranteed
Liabilities have not been paid on the due date therefor in
accordance with the terms of the Lease.
I0 Any sum or sums recovered by the Lessor under the Letter of Credit
or any Replacement Letter of Credit (other than sums deposited in
a bank account in accordance with sub-clause 13.6) and any sums
withdrawn by the Lessor from such account shall be applied in the
same way as payments and recoveries under this Guarantee as
provided by Clause 11.
XIV SUPPLEMENTAL LETTER OF CREDIT
A0 In this clause 14, "SLC" is the figure specified in the term
"Supplemental Letter of Credit: Percentage of Annual Rent"
contained in the Particulars. For the avoidance of doubt, in
calculating the amount of any Supplemental Letters of Credit,
"SLC" is read
<PAGE> 260
- -17-
as a figure rather than a percentage (so that if "Supplemental
letter of Credit: Percentage of Annual Rent" is specified in the
Particulars as 50 per cent, SLC is read as "50" and not as "one
half").
B0 If "Supplemental Letter of Credit: Percentage of Annual Rent" is
specified as "zero" or "not applicable" in the Particulars then
this Clause 14 shall not apply to this Guarantee. If "Supplemental
Letter of Credit: Percentage of Annual Rent" is not specified ion
the Particulars then this Clause 14 shall apply to this Guarantee
and SLC shall be read as "50".
C0 If at any time and from time to time the Tangible Net Worth of the
Guarantor shall fall below the amount of the Tangible Net Worth
Threshold on or after the Effective Date, the Guarantor undertakes
within 7 days to deliver to the Lessor, in addition to the Letter
of Credit or any Replacement Letter of Credit, a letter of credit
(the "Supplemental Letter of Credit", which expression shall
include any amendment thereto or any amended or substituted
Supplemental Letter of Credit therefor delivered pursuant to
sub-clause 14.4) issued by a bank which is for the time being an
Eligible Bank in the form contained in the Appendix to this
Guarantee in a principal amount equal to the amount which is SLC
per cent of the annual Rent under the Lease at the date at which
such Supplemental Letter of Credit is delivered and with an
expiration date not less than one year after the date on which
such Supplemental Letter of Credit is delivered.
D0 Without prejudice to sub-clause 14.5, if and whenever prior to the
expiration of a Supplemental Letter of Credit or any Replacement
Supplemental Letter of Credit (as defined below), the annual Rent
payable under the Lease shall be increased (including by reason of
the execution of any Supplemental Lease) the Guarantor shall on or
prior to the effective date of such increase (the "Rent Increase
Date"), deliver to the Lessor as further security for the
Guaranteed Liabilities, an amendment to the Supplemental Letter of
Credit or Replacement Supplemental Letter of Credit issued by a
bank which is for the time being an Eligible Bank that has the
effect of increasing the principal amount of the Supplemental
Letter of Credit or Replacement Supplemental letter of Credit to
an amount equal to SLC per cent of such increased annual Rent.
E0 Without prejudice to sub-clause 14.4, not less than thirty (30)
days prior to the expiration of the Supplemental Letter of Credit
or any Replacement Supplemental Letter of Credit, the Guarantor
will deliver to the Lessor a replacement supplemental letter of
credit ("Replacement Supplemental Letter of Credit") issued by a
bank which is for the time being an Eligible Bank unless the
Tangible Net Worth of the Guarantor as at the day thirty (30) days
prior to the expiration of the Supplemental Letter of Credit or
Replacement Supplemental Letter of Credit exceeds the amount of
the Tangible Net Worth Threshold. The Replacement Supplemental
Letter of Credit shall be in the form contained in the Appendix to
this Guarantee and shall be in a principal amount equal to SLC per
cent of the annual Rent under the Lease as at the date at which
the Replacement Supplemental Letter of Credit is delivered and
shall have an expiration date not less than one year after the
date on which the Replacement Supplemental Letter of Credit is
delivered. If a Replacement Supplemental Letter of Credit or
Replacement Supplemental Letter of Credit is not delivered to the
Lessor by the date which is thirty (30) days prior to the
expiration date of the Supplemental Letter of Credit
<PAGE> 261
- -18-
or previous Replacement Supplemental Letter pursuant to this
sub-clause 14.5 (other than by reason of the Tangible Net Worth of
the Guarantor exceeding the amount of the Tangible Net Worth
Threshold) or an amendment to a Supplemental Letter of Credit or
Replacement Supplemental Letter of Credit is not delivered to the
Lessor on or prior to the Rent Increase Date pursuant to
sub-clause 14.4, then the Letter of Credit Guarantor agrees that
the Lessor shall be entitled to draw under the Supplemental Letter
of Credit or Replacement Supplemental Letter of Credit the full
outstanding balance of the principal amount thereof. If the
Guarantor does not deliver a Replacement Supplemental Letter of
Credit by reason of the Tangible Net Worth of the Guarantor
exceeding the amount of the Tangible Net Worth Threshold, and
subsequently the Tangible Net Worth of the Guarantor falls below
the amount of the Tangible Net Worth Threshold, the Guarantor
shall for the avoidance of doubt deliver a further Supplemental
Letter of Credit in accordance with Clause 14.3.
F0 All sums drawn by the Lessor pursuant to sub-clause 14.5 above
shall be deposited by the Lessor in an account at an Australian
trading bank and the credit balance on the account (together with
any interest accruing thereon) may be applied at any time and from
time to time in the same way as payments and recoveries under this
Guarantee as provided by Clause 11.
G0 The foregoing provisions of this Clause 14 shall apply (mutatis
mutandis) to any Replacement Supplemental Letter of Credit as they
do to the Supplemental Letter of Credit.
H0 The Guarantor agrees that the Lessor shall be entitled to make one
or more drawings under the Supplemental Letter of Credit or any
Replacement Supplemental Letter of Credit at any time or times to
the extent that any of the Guaranteed Liabilities have not been
paid and performed on the due date therefor in accordance with the
terms of the Lease.
I0 Any sum or sums recovered by the Lessor under the Supplemental
Letter of Credit or any Replacement Supplemental Letter of Credit
(other than sums deposited in a bank account in accordance with
sub-clause 14.6) and any sums withdrawn by the Lessor from such
account shall be applied in the same way as payments and
recoveries under this Guarantee as provided by Clause 11.
J0 If at any time and from time to time after the Guarantor has
provided the Supplemental Letter of Credit to the Lessor, the
Tangible Net Worth of the Guarantor rises above the amount of the
Tangible Net Worth Threshold and constantly remains above that
amount for a period of 6 months or more, the Lessor must return
the Supplemental Letter of Credit to the Guarantor. If at any time
and from time to time the Tangible Net Worth of the Guarantor
subsequently falls below the amount of the Tangible Net Worth
Threshold, the Guarantor undertakes within 7 days to deliver to
the Lessor a new
<PAGE> 262
- -19-
Supplemental Letter of Credit in accordance with clause 14.3 and
the remaining provisions of this clause 14 shall apply.
XV FINANCIAL STATEMENTS
A0 The Guarantor undertakes to deliver to the Lessor:
a0 within 140 days after the end of each of its financial
years, the audited financial statements of the Guarantor;
and
b0 within 10 days after the mailing thereof (or the delivery
thereof in the case of any materials not mailed), any and
all notices, circulars or other materials provided by the
Guarantor to its shareholders generally.
XVI OBLIGATION OF THE GUARANTOR TO ENTER INTO A NEW LEASE
A0 If so required by the Lessor by written notice to the Guarantor at
any time after an Event of Default under the Lease, the Guarantor
agrees that:
a0 it will take from the Lessor a grant of a lease of the
Leased Property under the Lease for the residue of the term
of years granted by the Lease unexpired at the date of such
Event of Default at the same yearly rents reserved by the
Lease and subject to the like covenants, provisos and
conditions in all respects (including the proviso for
re-entry and any obligation to enter into a new lease) as
are contained in the Lease (but so that the times at which:
(1) the yearly rent is to be revised; and
(2) the Leased Property is to be decorated further
shall be the same times respectively as are
specified in the Lease); and
b0 on the execution of any such further lease it shall execute
and deliver to the Lessor a counterpart thereof and a fixed
and floating charge in the form of a limited charge
executed by the Lessee incorporating a legal charge over
the Leased Property, the Approvals and the Lessee's
Personal Property subject to such modifications as the
Lessor considers necessary or appropriate.
XVII PAYMENTS
A0 All sums payable by the Guarantor under this Guarantee shall be
paid to the Lessor as it may from time to time direct in full free
of any present or future taxes, levies, imposts, duties, charges,
fees or withholdings and without set-off or counterclaim or any
restriction, condition or deduction whatsoever. If the Guarantor
is compelled by law to make any deduction or withholding the
Guarantor undertakes to promptly pay to the Lessor such additional
amount as will result in the net amount received by the Lessor
being equal to the full amount which would have been receivable
had there been no
<PAGE> 263
- -20-
deduction or withholding. Any additional amount paid under this
sub-clause 17.1 shall not be treated as interest but as agreed
compensation.
B0 If required to do so by the Lessor, the Guarantor undertakes to
pay any amount properly demanded hereunder to a collection agent
in Australia appointed by the Lessor for that purpose.
C0 Payments made under this Guarantee shall be made in Australian
dollars and no liability of the Guarantor under this Guarantee
shall be satisfied unless and until the Lessor shall have received
the dollars amount thereof in full. If the Lessor receives any
payment or recovery pursuant to this Guarantee in a currency other
than Australian dollars, the Lessor shall be entitled (but not
obliged) at any time to convert such payment or recovery into
Australian dollars and shall incur no liability to the Guarantor
in so doing. If for the purposes of any proceedings or filing or
making any claim hereunder (whether in the insolvency of the
Guarantor or otherwise) the Lessor is required to express any
amount in any currency other than Australian dollars then the
Lessor may express such amount calculated at such exchange rate as
shall be notified to the Lessor by its bankers for the time being
as the rate at which such bankers will buy such currency for
Australian dollars and the Guarantor undertakes in relation to any
amounts claimed from it, as a separate and independent cause of
action, to indemnify the Lessor from any loss caused to the Lessor
arising from any subsequent fluctuation in exchange rates prior to
receipt by the Lessor of the amount claimed.
XVIII INDEMNITY
A0 The Guarantor hereby agrees on demand to indemnify the Lessor on a
full and unqualified indemnity basis against all losses, actions,
claims, costs, charges, expenses and liabilities (together with
any value added tax thereon) incurred or sustained by the Lessor:
a0 in relation to the enforcement of this Guarantee or
occasioned by any breach by the Guarantor of any of its
covenants or obligations to the Lessor under this
Guarantee;
b0 arising by reason of or in connection with any lack of
capacity or lack of authority on the part of the Lessee in
entering into the Lease; or
c0 arising by reason of or in connection with any lack of
capacity or authority on the part of the Guarantor in
entering into this Guarantee or the Lease or this Guarantee
not taking effect in accordance with their terms for any
reason.
XIX SET-OFF
A0 In addition to any general lien or similar right to which it might
be entitled by operation of law, the Lessor shall have the right
(but not the obligation) at any time after the occurrence of any
Event of Default and without notice to the Guarantor (both before
and after making any demand hereunder) to set-off any moneys,
liability or obligation of the Lessor to the Guarantor whether
<PAGE> 264
- -21-
for the time being present or future and whether for the time
being actual or contingent in or towards satisfaction of the
liability of the Guarantor to the Lessor hereunder whether for the
time being present or future and whether for the time being actual
or contingent.
XX MISCELLANEOUS
A0 No term, condition or provision of this Guarantee may be waived
except by an express written instrument to the effect signed by
the waiving party. No waiver of any term, condition or provision
of this Guarantee will be deemed a waiver of any other term,
condition or provision of this Guarantee or any other document
(including without limitation or Collateral Security Document),
irrespective of similarity or constitute a continuing waiver of
the same term, condition or provision, unless otherwise expressly
provided.
B0 If any one or more of the terms, conditions or provisions
contained in this Guarantee is found in a final award or judgment
rendered by any court of competent jurisdiction to be invalid,
illegal or unenforceable in any respect as against the Guarantor,
the validity, legality and enforceability of the remaining terms,
conditions and provisions of this Guarantee shall not in any
jurisdiction in any way be affected or impaired thereby, and this
Guarantee shall be interpreted and construed as if the invalid,
illegal or unenforceable term, condition or provision had never
been contained in this Guarantee.
C0 This Guarantee shall be governed by, and construed in accordance
with, the laws of New South Wales.
D0 Any legal action or proceedings arising out of or in connection
with this Guarantee may be brought in the Courts of New South
Wales and the parties irrevocably and unconditionally submit to
the jurisdiction of such Courts. The submission to such
jurisdiction shall not (and shall not be construed so as to) limit
the right of any party to take proceedings in whatsoever
jurisdictions it thinks fit, nor shall the taking of proceedings
in any one or more jurisdictions preclude the taking of
proceedings in any other jurisdiction, whether concurrently or
not.
E0 Any release, discharge or settlement between the Guarantor and the
Lessor shall be conditional upon no security, disposition or
payment to the Lessor by the Lessee or any other person liable
being void, voidable, set aside or ordered to be refunded pursuant
to any court order or enactment relating to bankruptcy,
liquidation, administration or insolvency or for any other reason
whatsoever and if such condition shall not be fulfilled, the
Lessor shall be entitled to enforce this Guarantee subsequently as
if such release, discharge or settlement had not occurred and any
such security, disposition or payment had not been made. The
Lessor shall be entitled to retain this Guarantee after as well as
before the payment of or discharge of all of the Guaranteed
Liabilities for such period as the Lessor may choose.
F0 All notices, demands or other communications under or in
connection with this Guarantee may be given by letter or facsimile
or other comparable means of communication addressed to the party
at the address as the Lessor may notify the Guarantor as the case
may be in the Particulars. Any such communication by the
<PAGE> 265
- -22-
Lessor to the Guarantor will be deemed to be given as follows:
a0 if personally delivered, at the time of delivery;
b0 if sent by facsimile or comparable means of communication,
at the time of transmission; and
c0 if by letter, at noon on the Business Day following the day
such letter was posted first class postage pre-paid (or in
the case of airmail, seven days after the envelope
containing the same was delivered into the custody of the
postal authorities).
In proving such service it shall be sufficient to prove that
personal delivery was made or that such letter was properly
stamped first class, addressed and delivered to the postal
authorities or in the case of facsimile transmission or other
comparable means of communication, that a transmission report was
produced.
G0 This Guarantee may be executed in any number of counterparts, each
of which, when so executed and delivered, shall be deemed an
original, and the counterparts together shall constitute only one
instrument. Any or all of the counterparts may be executed within
or outside New South Wales. Any one of the counterparts shall be
sufficient for the purpose of proving the existence and terms of
this Guarantee, and no party shall be required to produce an
original or all of the counterparts in making such proof.
H0 The parties hereto represent that they have been respectively
represented and advised by lawyers in connection with the
execution of this Guarantee. The Guarantor acknowledges receipt of
a copy of the agreement for lease relating to the Lease and of
Lease itself, and further represents that the Guarantor has been
advised by lawyers qualified in Australia with respect thereto.
This Guarantee shall be construed and interpreted in accordance
with the plain meaning of its language, and not for or against
either party and as a whole, giving effect to all of the terms,
conditions and provisions hereof.
I0 Except as provided in any other written agreement now or at any
time hereafter in force between the Lessor and the Guarantor, this
Guarantee shall constitute the entire agreement of the Guarantor
with the Lessor with respect to the subject matter hereof, and no
representation, understanding, promise or condition concerning the
subject matter hereof will be binding upon the Lessor unless
expressed herein or therein.
J0 All stipulations, obligations, liabilities and undertakings under
this Guarantee shall be binding upon the Guarantor and its
successors and shall enure to the benefit of the Lessor including
without limitation any person included in the definition of Lessor
pursuant to Clause 1.
<PAGE> 266
- -23-
K0 The Lessor may assign, transfer, novate, dispose of, grant any
interest in or declare a trust in respect of its rights and
obligations under this Guarantee in whole or in part, without
regard to any equities between the Guarantor and the Lessor and
without the consent of the Guarantor in favour of any person (in
this clause an "Assignee") including any person to whom the
immediate reversionary interest in any of the Group Leases or any
interest (including without limitation a Security Interest) in,
under or derived from the immediate reversionary interest in any
of the Group Leases is vested, assigned, transferred, novated,
disposed of to or granted at any time.
L0 The Lessor may disclose any information concerning the Guarantor
and its Related Bodies Corporate (if any) to any Assignee or
proposed Assignee, or otherwise to any person in connection with
any financing arrangement or securitisation to which it or any
ALUT Company may be a party, as it may in its discretion think
fit.
M0 The Guarantor may not assign, transfer, novate or dispose of or
grant any of or declare any interest in respect of, or any
interest in, its rights and obligations under this Guarantee.
DULY EXECUTED AS A DEED
The common seal of MORAN HEALTH CARE GROUP
PTY LIMITED is affixed in accordance
with its articles of association:
. . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . .
Signature of authorised person Signature of authorised person
. . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . .
Office held Office held
. . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . .
Name of authorised person (print) Name of authorised person (print)
<PAGE> 267
- -24-
Signed, sealed and delivered by the attorney of
PREMIER CARE AUSTRALIA PTY LIMITED under
power of attorney registered Book ............ No
............ in the presence of:
. . . . . . . . . . . .
Signature of attorney
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Signature of witness Office held
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Name of witness (print) Name of attorney (print)
<PAGE> 268
- -25-
APPENDIX 1
FORM OF SUPPLEMENTAL LETTER OF CREDIT
AND REPLACEMENT SUPPLEMENTAL LETTER OF CREDIT
(Date)
LETTER OF CREDIT NO:
BENEFICIARY:
ALUT
C/-Phillips Fox
255 Elizabeth Street
Sydney NSW 2000
We hereby establish our Irrevocable Transferable Standby Letter of Credit number
[ ] in favour of [ ] (the "Beneficiary") for the account of [ ] up to the
aggregate amount of $[ ] ([ ] dollars) expiring on [ ] (the "Expiration Date")
and hereby undertake that, upon the Beneficiary's first written demand or
demands made at any time and from time to time on or before the Expiration Date,
we will pay to the Beneficiary in immediately available funds an amount or
amounts not exceeding $[ ] ([ ] dollars). Payment will be made against any
written demand in or substantially in the form of the draft attached hereto
signed by or on behalf of the Beneficiary.
THIS LETTER OF CREDIT IS SUBJECT TO THE 1993 REVISION OF THE UNIFORM CUSTOMS
AND PRACTICE FOR DOCUMENTARY CREDITS OF THE INTERNATIONAL CHAMBER OF
COMMERCE (PUBLICATION NO 500).
WE HEREBY UNDERTAKE WITH YOU THAT DEMANDS UNDER AND IN COMPLIANCE WITH
THE TERMS OF THIS CREDIT WILL BE DULY PAID ON PRESENTATION TO US AT [
ABOVE.
For and on behalf of [ ].
<PAGE> 269
- -26-
[Form of Demand]
[ ]
Date: [ ]
Irrevocable Transferable Standby Letter of Credit [ ]
We hereby make demand for the payment of $[ ] ([ ] dollars) drawn on
the above mentioned Letter of Credit.
Yours very truly
....................................
Name: [ ]
Duly authorised
for and on behalf of
[ ]
<PAGE> 270
- -27-
APPENDIX 2
SCHEDULE OF PROPERTY LEASED
1 Endeavour: Certificate of Title Vol 8641 Fol 117
Folio Identifier 16/37509
2 Oban: Folio Identifier 2/37509
Folio Identifier 3/37509
Folio Identifier 4/37509
Folio Identifier 5/37509
Folio Identifier 6/37509
Folio Identifier 17/111507
3 Berkeley Village: Certificate of Title Vol 8624 Fol 130
4 Glenmere: Certificate of Title Vol 8644 Fol 38
5 Seaside: Folio Identifier 51/SP22115
6 Tweed Heads: Folio Identifier 1/719133
Folio Identifier 11/736515
Certificate of Title Vol 8644 Fol 37
7 Edgewood Park: Certificate of Title Vol 8643 Fol 95
8 Killarney Vale: Folio Identifier 22/794053
Certificate of Title Vol 8641 Fol 95
Folio Identifier 13/732182
9 Cherrywood: Folio Identifier 27/837884
10 Hillside: Certificate of Title Vol 8638 Fol 198
<PAGE> 271
ANNEXURE "A"
SCHEDULE OF PROPERTY LEASED
I. Vol 8641 Fol 117
II. 16/37509
III. 2/37509
IV. 3/37509
V. 4/37509
VI. 5/37509
VII. 6/37509
VIII. 17/111507
IX. Vol 8624 Fol 130
X. Vol 8644 Fol 38
XI. 51/SP22115
XII. 1/719133
XIII. 11/736515
XIV. Vol 8644 Fol 37
XV. Vol 8643 Fol 95
XVI 22/794053
XVII. Vol 8641 Fol 95
XVIII. 13/732182
XIX. 27/837884
XX. Vol 8638 Fol 198
<PAGE> 272
MORTGAGE OF SHARES
PREMIER CARE AUSTRALIA PTY LIMITED
AND
MORAN HEALTH CARE GROUP PTY LIMITED
[PHILLIPS FOX LAWYERS LOGO]
255 Elizabeth Street Sydney NSW 2000 Australia
Tel +61 2 9286 8000 Fax +61 2 9283 4144 DX 107 SYDNEY
Email: [email protected] WWW site: http://www.Phillips
Fox.com.au
<PAGE> 273
MORTGAGE OF SHARES
THIS AGREEMENT IS MADE AS A DEED POLL ON 1998
BY: THE PERSON(S) WHOSE NAME, ADDRESS AND ACN APPEARS IN ITEM 1 OF THE
SCHEDULE (MORTGAGOR)
TO: PREMIER CARE AUSTRALIA PTY LIMITED ACN [069 875 476] OF LEVEL 12, 255
ELIZABETH STREET, SYDNEY, NEW SOUTH WALES (MORTGAGEE)
RECITALS
Mortgagee has agreed to grant the Lease to the Debtor and enter into the
Transaction Documents at the request of the Mortgagor upon the condition that
the Mortgagor enters into this mortgage.
AGREEMENTS
I. DEFINITIONS AND INTERPRETATION
A. DEFINITIONS
1. Where commencing with a capital letter:
"BUSINESS" means the business carried on by the Debtor from time to
time;
"COMPANY" means the company or companies in respect of which the
Mortgaged Property is issued;
"CONTROLLER" means a Controller as defined in Part 5.7 of the
Corporations Law;
"DEBTOR" means Moran Health Care (Australia) Pty Limited in its own
right and as trustee of the Moran Health Care Australia Trust in
respect of whom the Mortgagor has given a guarantee or indemnity to
Mortgagee and may include the Mortgagor;
"EVENT OF DEFAULT" means any event or circumstance referred to in
clause 11.2;
"LEASE" means the real property lease dated about the date of this deed
relating to the Business and made between the Debtor as lessee and the
Mortgagee as lessor;
"MORTGAGED PROPERTY" means:
a. certificates for shares or stock and transfers of shares and
stocks, certificates, and other documents relating to the
Mortgagor which have been or are deposited with Mortgagee as
security for the obligations of Mortgagor to Mortgagee pursuant
to this mortgage.
<PAGE> 274
- -2-
b. money owing presently or in the future to the Mortgagor in
respect of the Mortgaged Property; and
c. property presently or in the future attaching to the Mortgaged
Property or presently or in the future acquired by the Mortgagor
pursuant to any Mortgaged Property;
"RELATED BODY CORPORATE" has the same meaning as is given to that term
in the Corporations Law;
"SECURED MONEY" means any money which at any time and whether under
this deed, a Transaction Document or any other arrangement:
(a) the Mortgagor or Debtor in any capacity and whether alone or with
others:
(1) is actually or contingently liable to pay Mortgagee; or
(2) may become actually or contingently liable to pay to
Mortgagee in the future pursuant to any transaction or
arrangement at any time entered into or made by
Mortgagee with any person; or
(3) may become actually or contingently liable to pay to
Mortgagee in the future as liquidated or unliquidated
damages pursuant to any claim or cause of action;
(b) can be debited to any account of the Mortgagor or any Debtor with
Mortgagee;
(c) is at any time advanced or paid by Mortgagee to a person with the
express or implied consent or at the express or implied request
of the Mortgagor or a Debtor; or
(d) Mortgagee is or may become actually or contingently liable to pay
a person in connection with a transaction or arrangement entered
into with the express or implied consent or at the express or
implied request of the Mortgagor or a Debtor;
"SECURITY" means any guarantee or indemnity given in respect of an
obligation of the Debtor, Mortgagor or Security Provider under any
agreement between the Debtor, Mortgagor or Security Provider with
Mortgagee and any legal or equitable mortgage, charge or other security
of any nature which secures such guarantee or indemnity or which
secures an obligation or liability of the Debtor, Mortgagor or Security
Provider under any agreement between the Debtor, Mortgagor or Security
Provider with Mortgagee;
"SECURITY PROVIDER" means any person who at any time gives or has given
a Security to Mortgagee to secure any obligations of the Debtor or
Mortgagor to Mortgagee;
"TRUST" means a trust or settlement pursuant to which the Mortgagor
holds any Mortgaged Property;
"TRUST DEED" means the instrument setting out all the terms currently
governing a Trust.
<PAGE> 275
- -3-
2. Where any word or phrase is given a defined meaning any other part of
speech or other grammatical form in respect of that word or phrase has
a corresponding meaning.
B. INTERPRETATION
1. A reference to:
a. a business day means a day, Monday to Friday during which banks
are open for general banking business in the state or territory
whose laws apply in the construction of this mortgage;
b. an item means an item of the schedule;
c. a time of day means that time of day in the state or territory
the laws of which apply in the construction of this mortgage; and
d. a person being associated with another person or a company being
related to or the subsidiary of another corporation or being a
holding company has the same meaning as in the Corporations Law.
2. Unless the context otherwise requires a word which denotes:
a. the singular denotes the plural and vice versa; and
b. any gender includes the other gender.
3. Unless the context otherwise requires a reference to:
a. any legislation includes any regulation, by laws or instrument
made under it and any orders or instruments having the force of
law and where amended, re-enacted or replaced means that amended,
re-enacted or replacement legislation;
b. any other agreement or instrument where amended, novated or
replaced means that agreement or instrument as amended, novated
or replaced;
c. a clause, schedule or annexure is a reference to a clause of,
annexure to or schedule to this mortgage;
d. a group of persons (including the Mortgagor if 2 or more persons)
includes any one or more of them;
e. any thing or amount is a reference to the whole and each part of
it; and
f. any legislation or legislative provision includes any
statutory modification or reenactment of a legislative
provision substituted for, and any statutory instrument issued
under that legislation.
<PAGE> 276
- -4-
C. JOINT AND SEVERAL
Any agreement warranty representation or obligation which binds or
benefits 2 or more persons under this mortgage binds or benefits those
persons jointly and severally.
D. SUCCESSORS AND ASSIGNS
A person includes:
a. the trustee, executor, administrator, successor in title and
assignee of that person; and
b. a corporation, firm, partnership, joint venture association,
trust, authority and a government.
This clause must not be construed as permitting the Mortgagor to assign
any right under this mortgage.
E. HEADINGS AND TABLE OF CONTENTS
Headings and table of contents must be ignored in the interpretation of
this mortgage.
F. REFERENCES TO AND CALCULATIONS OF TIME
1. Unless the context otherwise requires a reference to a time of day
means that time of day in the jurisdiction whose laws apply to this
mortgage.
2. For the purposes of determining the length of a period (but not its
commencement) a reference to:
a. a day means a period of time commencing at midnight and ending 24
hours later; and
b. a month means a calendar month which is a period commencing at
the beginning of a day of one of the 12 months of the year and
ending immediately before the beginning of the day of the
corresponding date of the next month, or if there is no such
corresponding date, ending at the expiration of the next month.
3. Where a period of time is specified from a given day or the day of an
act or event it must be calculated exclusive of that day.
4. Where something is done or received after 5.00pm on any day it will be
deemed to have been done or received on the following day.
5. A provision of this mortgage which has the effect of requiring anything
to be done on or by a date which is not a business day must unless the
context otherwise requires be interpreted as if it required it to be
done on or by the immediately preceding business day.
<PAGE> 277
- -5-
G. CORPORATE RELATIONSHIPS
A reference to a person being an associate of another person or a
company being related to or the subsidiary of another corporation or
being a holding company has the same meaning as in the Corporations
Law.
1.8 DEFINED TERMS IN THE LEASE
Words and expressions which have a defined meaning in the Lease have
the same meaning when used in this deed unless the same word is also
defined in this deed, in which case the definition in this deed
prevails.
II. MORTGAGE
A. ABSOLUTE ASSIGNMENT
The Mortgagor as beneficial owner absolutely assigns and conveys the
Mortgaged Property to Mortgagee free of all charges, liens and other
encumbrances and free of any liability to attachment.
B. TITLE DOCUMENTS
Subject to the rights of the holder of any prior ranking mortgage or
charge the Mortgagor must immediately on request by Mortgagee lodge
with Mortgagee all documents of or evidencing title to any Mortgaged
Property. The Mortgagor must with this mortgage provide Mortgagee with
an irrevocable direction as set out in annexure A for delivery to the
Company. Upon the substitution or replacement of any document which
evidences title to any of the Mortgaged Property the Mortgagor will
lodge the substituted or replaced document with Mortgagee.
C. TRANSFER FORMS
The Mortgagor must:
a. on the date of this mortgage in respect of all Mortgaged
Property; and
b. on the date that Mortgaged Property are subsequently created,
deliver to Mortgagee transfers of the Mortgaged Property in a form
acceptable to enable the Mortgagor's rights, title and interest in the
Mortgaged Property to be transferred to Mortgagee.
D. REDEMPTION
Upon payment in full of the Secured Money and Mortgagee being satisfied
that no Secured Money will arise in the future by virtue of any current
transaction or circumstance, Mortgagee
<PAGE> 278
- -6-
must at the written request and cost of the Mortgagor absolutely assign
and convey the Mortgaged Property back to the Mortgagor, redeliver all
documents of or evidencing title to any Mortgaged Property and advise
the Company that the direction given pursuant to clause 2.2 is revoked.
III. PERFORMANCE OF MORTGAGOR'S OBLIGATIONS GENERALLY
A. PERFORMANCE OF ALL OBLIGATIONS
In addition to its obligations under this mortgage the Mortgagor must:
a. duly perform all of its other obligations (both positive and
negative) at any time owed to Mortgagee including under the
Transaction Documents; and
b. duly perform or cause to be performed all of the obligations of
any Debtor or Security Provider at any time owed to Mortgagee
whether or not the Mortgagor has consented to the Debtor or
Security Provider undertaking such obligations.
B. MORTGAGEE'S RIGHT TO REMEDY
If the Mortgagor, Debtor or Security Provider fails to duly perform any
obligation owed to Mortgagee, then Mortgagee may do anything it
considers appropriate to protect its interests. The costs of and
liabilities incurred from any such action must be paid by the Mortgagor
upon demand. Action by Mortgagee to protect its interests does not
amount to waiver of a Event of Default.
IV. PAYMENT OF SECURED MONEY
A. TIME FOR PAYMENT
All payments required under this mortgage must be made by the Mortgagor
in full in immediately available funds prior to 4 p.m. on the relevant
due date (or any earlier time specified) without any deduction. The
Mortgagor irrevocably and unconditionally waives any right of set-off,
combination or counterclaim in relation to such payments.
<PAGE> 279
- -7-
B. PAYMENT FOLLOWING AN EVENT OF DEFAULT
If an Event of Default occurs the Mortgagor must pay the Secured Money
to Mortgagee immediately upon demand.
C. PAYMENT WITHOUT DEDUCTION OR SET-OFF
Secured Money must be paid in full without any deduction. The Mortgagor
waives all rights of set-off, combination or counterclaim in relation
to payment of Secured Money.
D. CREDIT FOR PAYMENT
The Mortgagor will be given credit for payment only upon its actual
receipt by Mortgagee in immediately available funds in the currency in
which it is due. Subject to any obligation to make payment by an
earlier time, if payment is received by Mortgagee on a day which is not
a business day or after 4.00pm (at the place payment is due to be made)
on any business day, Mortgagee may refuse to credit receipt until the
next business day in which case the Mortgagor must pay interest on that
amount until the receipt is so credited.
E. APPLICATION OF PAYMENTS
1. The Mortgagor irrevocably waives its right to determine the
appropriation of any money paid to Mortgagee. All payments may be
applied at the sole discretion of Mortgagee and any rule relating to
the application of money does not apply.
2. Any money received by Mortgagee in excess of Secured Money will, unless
an Event of Default has occurred or is continuing, be refunded to the
Mortgagor.
F. PLACE FOR PAYMENT OF MONEY
Subject to any express written agreement to the contrary all Secured
Money must be paid to Mortgagee at the place notified to the Mortgagor,
or, in the absence of notice, at Mortgagee's address in this mortgage.
G. SET-OFF AGAINST OTHER ACCOUNTS
The Mortgagor irrevocably authorises Mortgagee at any time without
notice (without notice to the Mortgagor and irrespective of any
outstanding cheques) to deduct from, set-off against, or combine with
any amount in any currency standing to the credit of any account of the
Mortgagor with Mortgagee, any related corporation of Mortgagee or other
financial institution anywhere in the world in or towards satisfaction
of any sum at any time due and payable by the Mortgagor under this
mortgage. Mortgagee has no obligation to effect any set-off under this
clause. This right is in addition to any rights arising under general
law.
<PAGE> 280
- -8-
H. OVERPAYMENT
Mortgagee is not required to pay or credit the Mortgagor with interest
on overpayment of the Secured Money.
I. PAYMENT IN WRONG CURRENCY
If Mortgagee receives payment of the Secured Money in a currency other
than that in which payment is due the Mortgagor will be given credit:
a. by reference to the spot rate at which Mortgagee is able to
directly or indirectly purchase the currency in which the payment
is due;
b. for the amount of the correct currency purchased after deducting
the costs of conversion (which may include a commission charge by
Mortgagee ); and
c. on the date of settlement of the conversion into the currency in
which the payment is due.
J. DEPOSIT ACCOUNTS
Where the Mortgagor is required to place money on deposit with
Mortgagee as security for any obligation:
a. notwithstanding the account name established for the deposit, the
deposit and interest credited to the account belong to Mortgagee
absolutely and the Mortgagor has no right to or interest in the
deposit and accrued interest;
b. upon payment of the deposit to Mortgagee, Mortgagee has an
obligation to pay the Mortgagor an amount equal to:
(1) the deposit; plus
(2) the interest Mortgagee would have paid (at call or such
longer term as agreed between Mortgagee and the Debtor or
the Mortgagor) on a deposit of the same amount (after
taking into account any payments made under this clause by
Mortgagee ) made at call (or such other amount as
Mortgagee may determine) for the period from its receipt
by Mortgagee to the earlier of the date Mortgagee makes
full payment under this clause and the date the Mortgagor
defaults in making payment of any Secured Money; less
(3) any amount payable at any time by the Debtor to Mortgagee
but remaining unpaid.
c. Mortgagee is not obliged to make payment under paragraph (b)
until all amounts which the Mortgagor is at any time actually or
contingently liable to pay Mortgagee have become payable;
<PAGE> 281
- -9-
d. if the amount referred to in paragraph (b) is reduced to nil,
Mortgagee may give a notice to the Mortgagor showing its
calculation in which case Mortgagee has no further obligations
under this clause.
V. INTEREST AND FEES
A. PAYMENT OF INTEREST
1. Subject to clause 5.1.2 the Mortgagor must pay Mortgagee interest
calculated daily at the Overdue Rate on any Secured Money which does
not otherwise bear interest from the earlier of the date it became
payable to or was outlaid by Mortgagee to the date of payment.
2. The Debtor must pay Mortgagee interest calculated daily at the Overdue
Rate on the outstanding amounts of any Secured Money and other money
(including interest) not paid when payable.
3. Subject to clause 5.1.4, interest on Secured Money must be paid in the
manner and on the interest payment dates agreed from time to time
(including by payment in advance). If no times are specified or agreed,
interest on Secured Money must be paid upon demand by Mortgagee from
time to time. Other interest must be paid as agreed from time to time
or, if not, upon demand by Mortgagee from time to time.
4. If an Event of Default occurs, interest accruing on Secured Money and
any other money owing is payable upon demand by Mortgagee.
B. CALCULATION OF INTEREST AND FEES
Interest under this mortgage and any fees calculated at a per year rate
must be calculated on the basis of a 365 day year in Australia, on the
basis of actual days elapsed.
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VI. UNDERTAKINGS RELATING TO THE MORTGAGED PROPERTY
A. PROVISION OF NOTICES RELATING TO THE MORTGAGED PROPERTY
The Mortgagor must without delay forward to Mortgagee copies of notices
of meetings and other communications and documents sent by the Company
to the Mortgagor.
B. VOTING
1. The Mortgagor must exercise any right to vote arising in respect of the
Mortgaged Property as directed by Mortgagee, following the occurrence
of an Event of Default.
2. At any time following the occurrence of an Event of Default the
Mortgagor must in the form acceptable to the Company give Mortgagee or
its nominee a proxy in relation to any meeting or meetings with
authority to vote in the proxy's discretion.
C. DIVIDENDS
1. In this clause dividends means any money received from the Company by
the Mortgagor in respect of the Mortgaged Property whether by way of
dividend, return of capital.
2. Other than Management Fees the Mortgagor agrees that it is not entitled
to dividends in respect of Mortgaged Property during the period which
is the second year of the term of the Lease. Any dividends received by
the Mortgagor in that period must be held in trust for Mortgagee.
3. Notwithstanding clause 6.3.2 and so long as there is no breach of a
Transaction Document, the Mortgagor will be entitled to keep, for its
own use dividends which it receives from the Debtor and relate to the
second year of the Lease. The right to receive such dividends is
conditional on the Mortgagor lending to the Debtor on terms approved by
the Mortgagee an amount equal to the amount of dividends received from
the Debtor.
D. RIGHTS ISSUES
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1. The Mortgagor must within 7 days of the terms of any rights issue in
relation to any Mortgaged Property being made known to it inform
Mortgagee of whether or not it will take up the offer.
2. The Mortgagor acknowledges that any shares acquired pursuant to any
rights issue in respect of any Mortgaged Property themselves become
Mortgaged Property.
3. If the Mortgagor gives Mortgagee notice that it will not take up the
offer it must without delay dispose of the rights for cash at the best
possible market price. The proceeds of any such sale belong to and must
be paid to Mortgagee in reduction of Secured Money.
E. CALLS AND OTHER PAYMENTS
The Mortgagor must when due pay all calls and other money due in
respect of the Mortgaged Property.
F. NEW ISSUES
The Mortgagor must accept allotments of any shares, notes, options or
other rights to be issued by the Company in respect of any Mortgaged
Property in its own name and immediately deliver all certificates and
other documents of or evidencing title to Mortgagee.
VII. NEGATIVE COVENANTS
A. PROHIBITION ON DEALING WITH THE MORTGAGED PROPERTY
1. The Mortgagor must not without Mortgagee's consent:
a. sell, lease, charge, encumber, surrender, grant any interest in
or power over or otherwise in any manner deal or agree or attempt
to deal with any Mortgaged Property or any interest in any
Mortgaged Property; or
b. permit any charge, lien, pledge, hypothecation, security, trust
or power to arise or exist in respect of any Mortgaged Property.
2. The Mortgagor's statutory powers to deal with the Mortgaged Property
are, to the fullest extent possible, excluded.
3. The Mortgagor will not be in default of its obligations under clause
7.1.1 because a charge arises by legislation in favour of a
governmental agency except where the Mortgagor has not paid when
payable money owing to that governmental agency.
B. PROHIBITION ON SET-OFF
The Mortgagor must prevent any set-off except to Mortgagee or
combination of accounts in respect of any book debt.
<PAGE> 284
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C. PROHIBITION ON ACTS PREJUDICIAL TO MORTGAGEE'S SECURITY
The Mortgagor must not exercise any right arising in relation to the
Mortgaged Property or directly or indirectly cause or influence any
decision of the Company (whether by its directors or shareholders) or
any person which has or may have an adverse affect on Mortgagee's
security under this mortgage or its value.
D. PROHIBITION ON CONVERSION OF MORTGAGED PROPERTY
The Mortgagor must not without the prior consent of Mortgagee:
a. permit any Mortgaged Property to be converted to another class;
b. waive, delay, or permit the Company to avoid or delay, any
obligation or preferential right in respect of any Mortgaged
Property; or
c. convert any note which is a Mortgaged Property.
E. OTHER PROHIBITIONS NOT TO BE AFFECTED
Nothing in this mortgage affects any other prohibition agreed by the
Mortgagor with Mortgagee.
VIII. PROVISIONS APPLYING TO A TRUSTEE MORTGAGOR
A. APPLICATION OF CLAUSE 8
Clause 8 applies where the Mortgagor is the owner or registered
proprietor of Mortgaged Property as trustee of a Trust.
B. REPRESENTATIONS AND WARRANTIES RELATING TO THE TRUST
Where the Mortgagor is acting as trustee of the Trust, the Mortgagor
warrants to Mortgagee that:
a. the Trust is validly created and existing and no circumstances
exist pursuant to which it may be determined and no date for the
vesting of any of the Trust fund has been appointed;
b. the Mortgagor has provided Mortgagee with true copies of all the
documents currently constituting the Trust Deed;
c. the Mortgagor is validly appointed as the sole trustee of the
Trust, is not in breach of its obligations as trustee and no
circumstances exist pursuant to which it may be removed;
<PAGE> 285
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d. this mortgage is duly executed and granted pursuant to and in
proper exercise of the powers of the Mortgagor as trustee of the
Trust and all formalities required by the Trust Deed in
connection with this mortgage have been complied with;
e. the use and performance of its obligations by the Mortgagor under
this mortgage are for the proper purpose of and provides
commercial benefit to the Trust;
f. the Mortgagor is entitled to be fully indemnified out of the
assets of the Trust in respect of its liability under this
mortgage;
g. the Mortgagor is the legal owner of all the assets of the Trust;
h. there is no dispute between the Mortgagor and any other person in
relation to the Trust or the Trust assets; and
i. the Mortgagor is empowered by the Trust Deed to carry on its
business as now conducted or contemplated and to own its property
and assets in its capacity as trustee of the Trust and there is
no restriction or condition upon such activity by it.
<PAGE> 286
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C. SPECIFIC PROHIBITIONS RELATING TO THE TRUST
The Mortgagor must not without Mortgagee's consent not to be
unreasonably withheld:
a. cease to be the only trustee of the Trust or do anything which
would cause or enable its removal;
b. cause or permit the Trust to be determined or a vesting date to
be appointed;
c. do or permit anything which adversely affects the Mortgagor's
right of indemnity against the Trust assets;
d. in any way vary the Trust Deed or permit it to be varied;
e. resettle, set aside, distribute or dispose of any Trust assets;
or
f. delegate any powers of the Mortgagor as trustee of the Trust or
exercise any power of appointment.
D. GENERAL OBLIGATIONS RELATING TO THE TRUST
1 The Mortgagor must at the request of Mortgagee provide full financial
details of the Trust.
2 The Mortgagor irrevocably and unconditionally grants Mortgagee direct
access to the Trust fund to recover any money not paid when payable
under this mortgage.
E0 TRUSTEE'S RIGHT OF INDEMNITY
Without limiting any right of subrogation Mortgagee may have, the
Mortgagor must at Mortgagee's request exercise the Mortgagor's right of
indemnity against Trust assets to enable payment of the Secured Money
to Mortgagee.
F0 NEW TRUSTEES
The Mortgagor must procure that any person who becomes a trustee of the
Trust (whether in replacement of or in addition to the Mortgagor)
enters into a deed with Mortgagee whereby it agrees to perform the
obligations of the Mortgagor under this mortgage.
G0 MORTGAGOR'S LIABILITY UNLIMITED
The Mortgagor's liability under this mortgage is not in any way limited
or otherwise affected by the Mortgagor being trustee of any trust or
the extent of its ability to indemnify itself out of the assets of the
Trust.
<PAGE> 287
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IX WARRANTIES AND INDEMNITIES
A0 WARRANTIES
The Mortgagor warrants to Mortgagee that:
a0 this mortgage constitutes and will continue to constitute a
valid and binding security enforceable in accordance with
its terms;
b0 no Event of Default has occurred and no event occurred and
no circumstance exists which with the giving of notice,
lapse of time or fulfilment of any condition would
constitute an Event of Default;
c0 the Mortgagor has obtained all necessary consents and
complied with all internal procedures in relation to the
execution and performance of this mortgage;
d0 no other person has any interest or rights in respect of
the Mortgaged Property;
e0 the Mortgagor has disclosed to Mortgagee the full extent of
the interests in and control of the Mortgagor;
f0 the Mortgagor has not relied upon any representation or
statement by or on behalf of Mortgagee, but has determined
to enter into this mortgage solely upon its own assessment
after having obtained advice from its own advisers;
g0 where the Mortgage secures money owing by a Debtor the
Mortgagor (where it is a company) is receiving valuable
commercial benefit for giving this mortgage;
h0 the Mortgagor has been given the opportunity to obtain and
has obtained such legal and financial advice in relation to
its obligations and liabilities under this mortgage as is
necessary to fully understand those obligations and
liabilities.
B0 INDEMNITIES
The Mortgagor irrevocably and unconditionally indemnifies
Mortgagee against all actions, claims, demands, losses (including
without limitation loss of margin), damages, liabilities, costs
and expenses of any nature incurred at any time actually or
contingently by Mortgagee as a direct or indirect consequence of:
a0 a failure by the Mortgagor or the Debtor to pay any Secured
Money when payable or comply with any other obligation owed
to Mortgagee;
b0 the occurrence of an Event of Default
c0 Mortgagee or an attorney lawfully appointed under this
mortgage exercising or attempting to exercise any power or
right under this mortgage, in any other agreement between
the Mortgagor and Mortgagee or at general law;
<PAGE> 288
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d0 Mortgagee entering into any agreement or transaction in
connection with this mortgage;
e0 Mortgagee seeking to recover any Secured Money from any
other person liable to pay it;
f0 an actual or assumed legal obligation of Mortgagee to pay
any money or do any thing in connection with the Mortgaged
Property;
g0 a warranty in this mortgage being incorrect in any respect;
h0 judgment being given for any Secured Money in a currency
other than that which that Secured Money is due;
i0 the rate of interest applying to any judgment debt being
less than that applying to the original obligation to pay
Secured Money in respect of which judgment was obtained;
j0 Mortgagee receiving payment of Secured Money earlier or
later than the date it should be paid if no Event of
Default had occurred;
k0 a claim that a payment, obligation, settlement,
transaction, conveyance or transfer in connection with
Secured Money (or money which would be Secured Money if the
claim was invalid) is void or voidable under any law
relating to insolvency, bankruptcy or the protection of
creditors or for any other reason being upheld conceded or
compromised;
l0 Mortgagee properly acting as the Mortgagor's attorney or
providing any indemnity to any person so acting;
m0 Mortgagee paying (whether or not under a legal obligation)
any loss, cost or expense incurred by any officer,
employee, agent or consultant of Mortgagee in connection
with this mortgage;
n0 any dispute between the Mortgagor or the Debtor and any
other person;
o0 any agreement relating to any Secured Money being or
becoming void or unenforceable; and
p0 any new law or any change in any law or in the
interpretation of any law.
1 The Mortgagor's obligations to indemnify Mortgagee are absolute,
irrevocable and unconditional and continue (irrespective of
discharge of this mortgage) until an express release is given. The
Mortgagor waives any right or claim which may have the effect of
reducing or impairing the indemnities given by it.
<PAGE> 289
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X PROVISION OF INFORMATION AND ACCESS TO MORTGAGE
A0 NOTIFICATION OF MATTERS TO MORTGAGEE
1 The Mortgagor must immediately notify Mortgagee of the following:
a0 the occurrence of an Event of Default or an event or
circumstance which would with the giving of notice, lapse of
time or fulfilment of any condition be likely to become an
Event of Default;
b0 the receipt by the Mortgagor of any demand pursuant to
section 459E of the Corporations Law; and
c0 anything which gives or may give rise to a claim for
compensation in relation to Mortgaged Property; and
d0 the appointment of an administrator under Division 2 of Part
5.3A of the Corporations Law ("Administrator").
2 The Mortgagor must provide Mortgagee with such other information
following notification under clause 10.1.1 as Mortgagee requires.
XI EVENTS OF DEFAULT AND MORTGAGEE'S POWERS
A0 MORTGAGOR TO PREVENT EVENT OF DEFAULT
The Mortgagor must prevent the occurrence of an Event of Default
and acknowledges that it will be in default under this mortgage if
an Event of Default occurs.
B0 EVENT OF DEFAULT
An Event of Default will occur if:
a0 a Mortgagor, Debtor, Security Provider or Related Body
Corporate fails to pay when payable any money owing at any
time to Mortgagee or any company associated with Mortgagee at
any time;
b0 a Mortgagor, Debtor, Security Provider or Related Body
Corporate fails to perform any non monetary obligation owing
at any time to Mortgagee or any company associated with
Mortgagee at any time and, to the extent that the failure is
capable of remedy within 5 business days, it continues for 5
business days after written notice from Mortgagee requiring
its remedy;
c0 Mortgagee becomes entitled to demand immediate payment of
money secured by a Security or to enforce that Security or
would have become so entitled but for any legislation
requiring notice or lapse of time;
<PAGE> 290
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d0 a warranty, representation, answer to requisition or
statutory declaration at any time made or given by or on
behalf of a Mortgagor, Debtor, Security Provider or Related
Body Corporate if material is found to be incorrect or
misleading;
e0 a Mortgagor, Debtor or Security Provider or Related Body
Corporate becomes an externally-administered body corporate
as defined in the Corporations Law or if an application is
made, proceedings are initiated, a meeting (of shareholders,
creditors or directors) is called, notice is given or an
appointment is made or proposed which Mortgagee considers may
lead to that;
f0 notice is given or published or action is taken with a view
to cancelling the registration of a Mortgagor, Debtor,
Security Provider or Related Body Corporate or appointing an
inspector or other officer to investigate any of its affairs
pursuant to any legislation;
g0 a receiver, receiver and manager, liquidator or Controller is
appointed in respect of the Mortgagor, the Debtor or a
Security Provider;
h0 a Mortgagor, Debtor, Security Provider or Related Body
Corporate commits an act of bankruptcy within the meaning of
section 40 of the Bankruptcy Act 1966 or dies or becomes
incapable of managing his or her own affairs by reason of
mental or other condition;
i0 where a Mortgagor, Debtor, Security Provider or Related Body
Corporate is a partnership, that partnership is dissolved, an
application is made for its dissolution or more than 20% of
its members retire in any 6 month period:
j0 where the Mortgagor, Debtor, Security Provider or Related
Body Corporate is a joint venture, that joint venture is
terminated;
k0 a judgment for more than $25,000 (increased by an amount of
$25,000 every 3 years for a period of 15 years from the date
of this deed) is entered in any court against a Mortgagor,
Debtor or Security Provider or Related Body Corporate and not
satisfied, appealed or set aside within 28 days;
l0 a Mortgagor, Debtor, Security Provider or Related Body
Corporate stops payment of its debts or ceases or threatens
to cease to carry on any of its businesses;
m0 an event or circumstance occurs which entitles a person to
cancel, terminate or demand repayment of any credit or
financial accommodation extended to a Mortgagor, Debtor,
Security Provider or Related Body Corporate or exercise any
right under any security for such credit or financial
accommodation;
n0 the Mortgagor, Debtor, Security Provider or Related Body
Corporate fails to comply with a condition attaching to a
consent or approval issued by Mortgagee in the context of
this mortgage or any security;
o0 where the Mortgagor, Debtor, Security Provider or Related
Body Corporate is a corporation which is not listed on a
recognised Australian stock exchange there
<PAGE> 291
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is a change in the ownership (at the date of this mortgage)
of more than 25% of the issued voting shares in the
Mortgagor, Debtor, Security Provider or Related Body
Corporate or there is a change in the control of the
Mortgagor, Debtor, Security Provider or Related Body
Corporate without Mortgagee's consent;
p0 in Mortgagee's reasonable opinion there is a change in the
persons who control the Mortgagor, the Debtor, Security
Provider or Related Body Corporate or in the activities of
the Mortgagor, Debtor or Security Provider;
q0 anything occurs in connection with an asset secured by a
Security (including without limitation, any pollution or the
issue of any notice requiring clean up) which, in Mortgagee's
reasonable opinion, has a material adverse affect on the
value or saleability of that asset;
r0 a demand under section 459E of the Corporations Law is served
on the Mortgagor, Debtor, Security Provider or Related Body
Corporate and a copy is not provided immediately after
service to Mortgagee; or
s0 without limiting the operation of any other Event of Default,
any other event occurs or circumstance arises, financial or
otherwise, which, in the reasonable opinion of Mortgagee, is
likely to materially and adversely affect the ability of the
Mortgagor, Debtor, Security Provider or Related Body
Corporate to meet its obligations to Mortgagee; and
t the Debtor or Mortgagor breaches any term of the Lease or any
other Transaction Document to which it is a party and does
not remedy or rectify such breach in accordance with the
Lease or Transaction Document as the case may be.
C0 NOTIFICATION OF EVENTS OF DEFAULT
The Debtor must immediately notify Mortgagee of the occurrence of
an Event of Default or the existence of any circumstance which may
lead to the occurrence of an Event of Default.
D0 NO DEFAULT CERTIFICATE
Upon request, the Debtor must give Mortgagee a certificate signed
by the Debtor (or where a company, by 2 directors) stating whether
or not an Event of Default has occurred or is likely to occur.
E0 REPORT BY QUALIFIED ACCOUNTANT
1 Following the occurrence of an Event of Default and whether or not
Mortgagee has exercised any of its rights and powers on default,
the Mortgagor at its cost must at the request of Mortgagee
promptly provide Mortgagee with a report by a qualified accountant
approved by Mortgagee on the financial condition of the Mortgagor,
the value of any Mortgaged Property and any other related matter
Mortgagee requires.
<PAGE> 292
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2 If the Mortgagor fails to obtain any such report then Mortgagee
may commission such a report the reasonable cost of which must be
borne by the Mortgagor. Mortgagee may acting on the advice of the
accountant pay the cost of obtaining any report, in which case
such cost will be deemed Secured Money.
3 For the purposes of providing the report in clause 11.5.1 the
Mortgagor will ensure Mortgagee or a qualified accountant approved
by Mortgagee has full and free access to the books and records of
the Mortgagor and the Mortgaged Property and any other related
matter that Mortgagee may require. The Mortgagor will ensure that
the staff of the Mortgagor assist Mortgagee at all times.
XII MORTGAGEE'S POWERS FOLLOWING EVENT OF DEFAULT
A0 EXERCISE OF POWERS GENERALLY
Whether or not Mortgagee has demanded payment of the Secured Money
Mortgagee may at any time following the occurrence of an Event of
Default in the manner and at the times it considers appropriate
(irrespective of any omission, neglect or delay):
a0 terminate or reverse any transaction or arrangement entered
into by Mortgagee at the express or implied request or with
the express or implied consent of the Mortgagor;
b0 enter into any transaction and make any payment to extinguish
any actual or contingent liability incurred by Mortgagee at
the express or implied request or with the express or implied
consent of the Mortgagor;
c0 open or close any account of the Mortgagor with Mortgagee and
transfer any credit balance to any new or other account;
d0 dishonour any cheque or cancel any encashment arrangement or
other arrangement provided to the Mortgagor in connection
with this mortgage; or
e0 pay any other mortgagee or encumbrancee of Mortgaged Property
any amount required to discharge or purchase (with or without
a transfer of its security) its debt.
The Mortgagor indemnifies Mortgagee upon demand against any
liability, cost or expense incurred pursuant to anything done
under this clause.
B0 MORTGAGEE'S GENERAL POWERS
Whether or not Mortgagee has demanded payment of the Secured
Money, Mortgagee may at any time following the occurrence of an
Event of Default in the manner and at the times it considers
appropriate (irrespective of any omission, neglect or delay):
a0 become the registered holder of the Mortgaged Property;
<PAGE> 293
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b0 receive dividends, profits and other payments or benefits in
relation to the Mortgaged Property;
c0 take any action it considers necessary or desirable for the
preservation, maintenance or enhancement of the Mortgaged
Property or the security constituted by this mortgage:
d0 commence, conduct, defend, compromise, settle, discontinue or
submit to arbitration any proceedings, claims, questions or
disputes in connection with the Mortgaged Property or this
mortgage;
e0 prove any debt or liability owed to the Mortgagor in the
bankruptcy, insolvency or winding up of any person and
receive dividends and assent to any proposal for a
composition or scheme of arrangement;
f0 exercise the rights of the Mortgagor in connection with the
Mortgaged Property;
g0 perform obligations of the Mortgagor in connection with the
Mortgaged Property under this mortgage or otherwise;
h0 renew, terminate, repudiate, rescind, vary, accept surrenders
of and exercise rights under any contract or arrangement
entered into by the Mortgagor, any predecessor in title or
Mortgagee (pursuant to the powers in this mortgage or at
general law) in connection with the Mortgaged Property;
i0 deal in any way with the Mortgaged Property;
j0 sell, surrender, dispose of, realise or convert into money
the Mortgaged Property on any terms and in any manner;
k0 grant upon any terms and in any manner an option to purchase
or acquire an interest in the Mortgaged Property;
l0 grant upon any terms and in any manner interests in or rights
over the Mortgaged Property;
m0 in the name and on behalf of the Mortgagor or otherwise,
borrow or obtain any form of financial accommodation upon any
terms in connection with the exercise of any power under this
mortgage or at general law;
n0 secure upon any terms and in any manner any money borrowed or
liability incurred by charge or mortgage over the Mortgaged
Property whether ranking in priority to, equally with or
after this mortgage;
o0 draw, accept, make and endorse any negotiable instrument;
<PAGE> 294
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p0 take up any rights issue or offer arising in connection with
the Mortgaged Property;
q0 delegate in any manner any of its powers and rights under
this mortgage or at general law;
r0 upon any terms and in any manner employ and terminate the
employment of persons and engage and terminate the engagement
of agents, contractors, consultants, advisers, auctioneers
and other persons in connection with its powers under this
mortgage or at general law;
s0 expend money, assume obligations and incur liabilities in
connection with any power under this mortgage or at general
law; and
t0 do anything else in Australia and elsewhere Mortgagee
considers necessary, desirable or convenient to be done in
connection with the recovery of Secured Money and anything
incidental or conducive to the exercise of any other power
under this mortgage or general law.
C0 EXERCISE OF POWERS BY AGENT
Mortgagee may exercise its powers under this mortgage or general
law by itself or through any agent. The fees charge d by any agent
must be paid by the Mortgagor.
XIII PROVISIONS RELATING TO MORTGAGEE'S POWERS
A0 POWERS ARE IN ADDITION TO STATUTORY POWERS
The powers of Mortgagee under this mortgage are to be construed
separately and are independent of and in addition to any other
legal, equitable or statutory powers.
<PAGE> 295
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B0 WAIVER OF STATUTORY NOTICES
To the extent permitted by any legislation the Mortgagor agrees to
dispense with any notice of or lapse of time before Mortgagee may
exercise any option, power or right following the occurrence of
any Event of Default.
C0 PROTECTION OF PURCHASERS
The Mortgagor agrees that any person dealing with Mortgagee need
not be concerned whether any power of Mortgagee has arisen or with
the propriety of any transaction undertaken by Mortgagee.
D0 SPECIFIC AUTHORITY TO EXERCISE POWERS
The Mortgagor irrevocably and unconditionally authorises Mortgagee
to exercise its powers under this mortgage or any legislation
notwithstanding that the Event of Default giving rise to exercise
of such powers may subsequently be deemed never to have occurred.
In such circumstances the Mortgagor:
a0 does not have any claim against Mortgagee for trespass or for
any loss suffered by the Mortgagor other than because of
fraud or gross negligence on the part of Mortgagee; and
b0 indemnifies Mortgagee against any claim or loss arising other
than because of fraud or gross negligence.
E0 PROTECTION OF MORTGAGEE
The Mortgagor agrees that Mortgagee are not liable for any loss
which may arise because of any omission or delay in the exercise
of any of their respective powers under this mortgage or any
legislation.
F0 MONEY OUTLAID IS SECURED
The Mortgagor must upon demand pay any money outlaid by Mortgagee
in exercising powers under this mortgage or at general law.
G0 ENTITLEMENT TO CHARGE COMMISSIONS
Mortgagee may, in addition to any fee or other charge, charge a
commission in connection with the management of and collection of
income from Mortgaged Property to the extent that those tasks have
not been delegated to an agent.
H0 MORTGAGEE MAY GIVE UP POSSESSION OF MORTGAGED PROPERTY
Mortgagee may at any time give up possession of the whole or any
part of the Mortgaged Property.
<PAGE> 296
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XIV POWER OF ATTORNEY
A0 MORTGAGEE AS MORTGAGOR'S ATTORNEY
For valuable consideration and following the occurrence of an
Event of Default the Mortgagor irrevocably appoints Mortgagee and
its employees at any time severally as its attorneys with power in
the name of the Mortgagor or the attorney to:
a0 do anything the Mortgagor should have done pursuant to this
mortgage or any Security;
b0 do anything the attorney considers necessary or desirable to
facilitate the exercise of any of Mortgagee's rights under
this mortgage or any Security, the payment to Mortgagee of
money owing under this mortgage or any Security or the
protection of Mortgagee's interests under this mortgage or
any Security;
c0 prepare, draw, complete, endorse, accept, deliver, present,
negotiate or otherwise deal with any bill of exchange in
relation to this mortgage;
d0 delegate its powers to any person for any period and revoke
such delegation;
e0 perform any obligation owed by the Mortgagor at any time to
Mortgagee;
f0 complete any blanks and correct any manifest errors in this
mortgage or any ancillary document or agree or give effect to
any such completion or correction and do all things necessary
to procure the registration of this mortgage as a valid
security with the priority intended by Mortgagee; or
g0 do anything in connection with the Mortgaged Property which
the Mortgagor could do including without limitation signing
any form or agreement to increase or vary priority
arrangements under the Corporations Law.
An attorney may act notwithstanding any conflict or interest in
the outcome.
B0 CONFLICTS OF DUTY
An attorney appointed under clause 14.1 may act notwithstanding
any conflict of duty or a direct or personal interest in the means
or result.
C0 ATTORNEY'S INDEMNITY AND COSTS
1 The Mortgagor indemnifies any attorney against any liability or
loss arising from the proper exercise of any powers under this
mortgage.
2 Mortgagee may indemnify any attorney in connection with the proper
exercise of its powers and the Mortgagor must reimburse any money
paid pursuant to any such indemnity.
<PAGE> 297
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XV PRESERVATION OF MORTGAGEE'S RIGHTS
A0 GENERAL PRESERVATION OF RIGHTS
This mortgage is a continuing security for the Secured Money. The
liabilities of the Mortgagor under this mortgage and the rights of
Mortgagee or an attorney of the Mortgagor appointed under this
mortgage are not affected by:
a0 Mortgagee granting any time or indulgence to the Mortgagor or
another person;
b0 Mortgagee compounding or compromising with or wholly or
partially releasing any Debtor, Guarantor or other person;
c0 laches, acquiescence, delay, acts, omissions or mistakes by
Mortgagee or another person;
d0 Mortgagee taking, varying, wholly or partially discharging or
otherwise dealing with or losing or impairing any other
security for Secured Money;
e0 any security for or obligation to pay Secured Money being or
becoming void, voidable or unenforceable;
f0 any person who was intended to assume any actual or
contingent liability to pay Secured Money not doing so or not
doing so effectively or being discharged;
g0 any other transaction or arrangement between Mortgagee or any
other person; or
h0 anything else which might otherwise have such affect at law
or in equity.
B0 NO MERGER
1 Mortgagee's right to payment of Secured Money arising under any
other instrument does not merge with the Mortgagor's undertaking
to pay Secured Money under this mortgage.
2 This mortgage does not merge with or affect any other security or
any judgment or order held at any time by Mortgagee.
<PAGE> 298
- -26-
C0 NO SUSPENSION OF PAYMENT OBLIGATION
Mortgagee may demand payment of Secured Money and exercise its
other rights and powers under this mortgage even if a negotiable
instrument, security, contract or other obligation relating to
Secured Money is still current or has not matured or fallen due.
D0 PARTNERSHIP MORTGAGOR
1 Where Secured Money includes any partnership indebtedness this
agreement continues to be binding notwithstanding any changes in
the partnership (including changes which result in the
partnership business being carried on by one person) and Secured
Money includes the indebtedness of the partnership following any
such change. The continuing partners of any such partnership
will ensure that any incoming partner is bound by all obligations
to pay Secured Money and that the incoming partner will sign all
documents required by Mortgagee evidencing the incoming partners
obligations to Mortgagee for Secured Money.
2 Mortgagee is under no obligation to release any Mortgagor who has
ceased to be a member of the partnership comprising the Mortgagor.
E0 NEW AND SUSPENSE ACCOUNTS
1 Mortgagee may without notice open up any new account of the
Mortgagor with Mortgagee and credit the new account with any
credit in any other account or any new receipts.
2 In the event of the liquidation of a Debtor, a Security Provider
or Mortgagor, Mortgagee may retain and carry to a suspense account
and appropriate at its discretion all money received by any
Receiver, any attorney or Mortgagee under or by virtue of this
mortgage and prove for the full amount of the Secured Money.
F0 MORTGAGOR NOT TO PROVE IN COMPETITION OR CLAIM SUBROGATION
The Mortgagor must not without Mortgagee's prior written consent:
a0 other than by its attorney appointed under this mortgage
prove in the bankruptcy or insolvency of a Debtor, Security
Provider or another Mortgagor or claim or receive the benefit
of any dividend, distribution or other payment pursuant to
that bankruptcy or insolvency; or
b0 directly or indirectly claim the benefit of any right, power,
remedy or security held by Mortgagee or of any distribution,
dividend or payment arising out of or relating to the
liquidation of the Debtor or any other person,
until the Secured Money has been paid in full to Mortgagee.
G0 NO ORDER IN EXERCISE OF SECURITIES
<PAGE> 299
- -27-
Mortgagee may exercise its security under this mortgage and any
other security for Secured Money in any order it wishes. The
Mortgagor waives any right of marshalling in relation to this
mortgage or any other security for Secured Money. Mortgagee is not
under any obligation to appropriate in favour of the Mortgagor or
to exercise, apply or recover any security for Secured Money or
any fund or asset that Mortgagee may be entitled to receive or
have a claim upon.
H0 RE-INSTATEMENT OF MORTGAGEE'S RIGHTS
If any claim that a payment, obligation, settlement, transaction,
conveyance or transfer in connection with Secured Money (or money
which would be Secured Money if the claim was invalid) is void or
voidable under any law relating to insolvency, bankruptcy or the
protection of creditors is upheld, conceded or compromised:
a0 Mortgagee is entitled immediately as against the Mortgagor to
the rights in respect of the Secured Money to which it would
have been entitled if all or part of that payment,
obligation, settlement, transaction, conveyance or transfer
had not taken place; and
b0 the Mortgagor agrees to immediately do any act or sign any
document at Mortgagee's request to restore Mortgagee to any
security or guarantee held by it from the Mortgagor
immediately before that payment, obligation, settlement,
transaction, conveyance or transfer.
XVI FURTHER ASSURANCES
A0 PERFECTION OF SECURITY
The Mortgagor must immediately upon request by Mortgagee do acts,
obtain consents, pay fees and execute deeds and other documents
deemed necessary or desirable by Mortgagee:
a0 to perfect any mortgage or charge pursuant to this mortgage;
b0 to effect any mortgage or charge agreed to be given pursuant
to this mortgage;
c0 to enable the exercise of Mortgagee's rights and powers;
d0 to effect the security and priority intended by this mortgage
and Mortgagee;
e0 to more effectively secure the Mortgaged Property to
Mortgagee; and
f0 to give Mortgagee a legal mortgage over any property
mortgaged or charge d under this mortgage.
<PAGE> 300
- -28-
B0 MORTGAGOR'S SECURITY FROM DEBTOR
The Mortgagor agrees to hold any indemnity (together with any
security for that indemnity) from any Debtor in respect of its
liability under this mortgage in trust for Mortgagee.
XVII MORTGAGEE'S RIGHT TO ASSIGN
A0 ASSIGNMENT
Mortgagee may at any time assign or deal in any way with its
interest in Secured Money or its rights under this mortgage.
Provided the Mortgagor's aggregate liability is not thereby
increased it must, at the request and cost of Mortgagee, sign any
deed or other document reasonably required by Mortgagee pursuant
to any such assignment or dealing.
B0 DISCLOSURE OF INFORMATION
Mortgagee may without notice to the Mortgagor disclose information
relating to the Mortgagor, Security Provider, Associated Entity,
Debtor, a Guarantor, the Mortgaged Property or Secured Money to
any registry, body or other authority or to any person in
connection with a genuine proposal to assign any interest in
Secured Money or this mortgage.
XVIII COSTS
A0 MORTGAGOR TO PAY ALL COSTS
The Mortgagor must pay to Mortgagee or as it may direct all costs
and expenses (including legal costs on a full indemnity basis
incurred by Mortgagee, any receiver or agent appointed by
Mortgagee under a Security and any officer of Mortgagee acting as
attorney under this mortgage or Security in connection with:
a0 the preparation, negotiation, stamping, registration
variation, discharge or release of this mortgage and any
agreement varying or relating to this mortgage and any
associated investigation, enquiries and searches;
b0 the recovery of the Secured Money;
c0 the assessment at any time after an Event of Default of the
Securities and Mortgagee's rights and duties;
d0 the exercise or attempted exercise of any power conferred on
Mortgagee (or any agent or attorney) pursuant to this
mortgage or by law or on any attorney pursuant to clause 14;
<PAGE> 301
- -29-
e0 any obligation Mortgagee has at any time to the Mortgagor
pursuant to any legislation, this mortgage or any transaction
contemplated by this mortgage;
f0 any application for Mortgagee's consent or approval in
connection with this mortgage and the issue or refusal of
consent or approval; and
g0 the assessment of the Mortgagor's position following the
occurrence of an Event of Default.
B0 MORTGAGOR TO PAY STAMP DUTY AND OTHER DUTIES
The Mortgagor must pay all stamp, transaction, registration and
similar duties, imposts, taxes (including without limitation,
financial institutions duty and debts tax) and levies arising
directly or indirectly in relation to this mortgage, any variation
or any transaction contemplated or evidenced by this mortgage. The
Mortgagor must immediately reimburse Mortgagee any such duties,
imposts, taxes and levies paid by Mortgagee.
C0 PAYMENT OF MORTGAGEE'S ADMINISTRATION FEE
The Mortgagor agrees to pay Mortgagee upon demand a fee for the
time spent by employees of Mortgagee in:
a0 considering any application by the Debtor, Mortgagor or
Security Provider for any approval or consent required under
this mortgage;
b0 preparation of this mortgage or any other document between
the Mortgagor, Debtor or Security Provider and Mortgagee;
c0 exercising its rights and powers and taking any action to
recover the Secured Money following the occurrence of an
Event of Default.
The fee will be calculated by reference to the hourly rates
recommended by the Insolvency Practitioners Association of
Australia from time to time and Mortgagee's determination of the
equivalent seniority levels of its employees.
XIX GENERAL
A0 SIGNING OF NOTICES BY MORTGAGEE
Any statement, demand, certificate or notice to the Mortgagor will
be effectively signed on behalf of Mortgagee if it is executed or
signed by Mortgagee, any director or secretary or employee of
Mortgagee, or any solicitor engaged by Mortgagee in connection
with this mortgage.
B0 SERVICE OF DEMAND NOTICE
<PAGE> 302
- -30-
In addition to effecting service pursuant to any statute any
statement, demand or notice to any party may be validly served
(notwithstanding that the demand or notice is returned to
Mortgagee for any reason) for the purposes of this mortgage by
being delivered or sent by certified post to the address of the
Mortgagor set out in item 1 or sent by telex or facsimile to the
telex or facsimile number of a machine situated at the residence
or place of business of any Mortgagor. Service will be deemed to
be valid service if made to the address, telex number or facsimile
number in item 1 unless the Mortgagor has notified Mortgagee in
writing of the change of the Mortgagor's address, telex and
facsimile number and Mortgagee has confirmed the change in
writing. Service pursuant to this clause is taken to be effected:
a0 where delivered - upon actual delivery;
b0 where posted - 2 days after dispatch by Mortgagee;
c0 where sent by telex - upon receipt by the sender of the
answerback code of the addressee after transmission of the
telex; and
d0 where sent by facsimile, on production of a transmission
report by the machine from which the facsimile was sent which
indicates that the facsimile was sent in its entirety to the
facsimile number of the recipient,
except where actual delivery is made or the telex or facsimile is
sent after 5.00pm or on a day which is not a business day when
service is taken to be effected at 9.00am on the next following
business day.
C0 MORTGAGOR'S STATEMENT OF MONEY OWING CONCLUSIVE EVIDENCE
Except in the case of manifest error, a written statement,
certificate or determination by Mortgagee setting out the amount
of money owing or any determination of an amount to be paid under
this Mortgage or any component part, shall be conclusive evidence
of the amount owing or the determination and will be binding on
the Mortgagor.
D0 REGISTRATION AND REQUISITIONS
1 The Mortgagor must upon demand by Mortgagee procure registration
of this mortgage and any mortgage or encumbrance given pursuant to
this mortgage with the priority intended by Mortgagee. The
Mortgagor must to the satisfaction of Mortgagee promptly comply
with any requisition raised by any authority in connection with
this mortgage its stamping and registration.
2 Where the priority of this mortgage or any mortgage or encumbrance
given pursuant to this mortgage is changed or varied the Mortgagor
must upon demand by Mortgagee complete any documentation required
by Mortgagee to ensure registration of this mortgage or any
mortgage or encumbrance given pursuant to this mortgage with the
priority intended by Mortgagee.
E0 NO MORATORIUM
<PAGE> 303
- -31-
The provisions of any legislation postponing payment of money,
reducing or fixing rates of interest or purporting to curtail or
restrict any rights of Mortgagee are to the extent that it is
lawful expressly excluded from application to this mortgage.
F0 TIME OF THE ESSENCE FOR MORTGAGOR'S OBLIGATIONS
The Mortgagor agrees that time is of the essence in relation to
the performance of its obligations expressed in or implied by this
mortgage.
G0 MORTGAGEE ' CONSENTS
1 Where Mortgagee's consent or approval is required pursuant to this
mortgage:
a0 unless otherwise expressed it may in Mortgagee's discretion
(and whether or not acting reasonably) be withheld or given
subject to terms or conditions; and
b0 it is not valid unless expressly given in writing by
Mortgagee.
2 Any consent given under this mortgage is not deemed to be consent
in the context of any other agreement. Nothing in this mortgage
can require Mortgagee to give its consent in the context of any
other agreement.
3 The Mortgagor must comply with the terms and conditions of any
consent.
4 Mortgagee may engage consultants and advisers to advise it in
relation to any application for its approval or consent under this
mortgage. The costs of those consultants and advisers must be
reimbursed by the Mortgagor upon demand.
5 The Mortgagor agrees that Mortgagee (and Mortgagee's employees and
consultants) owes no duty of care to the Mortgagor in issuing any
consent or approval and that in determining whether to proceed
with the thing consented to or approved the Mortgagor must rely
entirely on its own judgment and the advice of its own employees
and consultants.
H0 SURVIVAL OF PERSONAL COVENANTS AND AGREEMENTS
Any personal covenant or agreement by the Mortgagor to pay Secured
Money or any indemnity by the Mortgagor in favour of Mortgagee in
this mortgage remains in full force despite any release or
discharge of the whole or any part of the Mortgaged Property.
I0 SEVERABILITY OF PROVISIONS
Every provision of this mortgage is independent of the others. Any
provision which is prohibited or unenforceable in any jurisdiction
is to the extent of the prohibition or unenforceability deemed
removed without invalidating the remaining provisions.
<PAGE> 304
- -32-
J0 APPLICABLE LAW
Unless otherwise specified, this mortgage is governed by the law
of the state or territory nominated in item 3. The parties
irrevocably and unconditionally submit to the non-exclusive
jurisdiction of the court system of that place.
K0 MAXIMUM PROSPECTIVE LIABILITY
1. For the purposes of the priority rules in section 282 of the
Corporations Law this mortgage secures a prospective liability up
to the maximum amount specified in item 4 in addition to any
present liability.
2. For so long as there is no other charge over any Mortgaged
Property registered subsequently to this mortgage, this mortgage
also secures an additional prospective liability of an unlimited
amount.
3. Where there is another charge over any Mortgaged Property
registered subsequently to this mortgage, to the extent that the
priority accorded to this mortgage pursuant to section 282 of the
Corporations Law and clause 20.11.1 not adversely affected this
mortgage also secures an additional prospective liability of an
unlimited amount.
L. CONFLICT WITH TRANSACTION DOCUMENTS
In the event of any conflict or inconsistency between the terms of
the Lease and this deed then the terms of the Lease will prevail
over the relevant provision of this deed.
<PAGE> 305
- -33-
SCHEDULE TO MORTGAGE OF SHARES
(REFERENCE SCHEDULE)
ITEM 1: MORTGAGOR
Name: Moran Health Care Group Pty Limited
ACN: 008 585 242
Address: 13 - 15 Bridge Street, Sydney
Facsimile no: 9247 9666
ITEM 2: MORTGAGEE'S ADDRESS
Address: c/- Phillips Fox, 255 Elizabeth Street, Sydney Attn: WGC
Facsimile no: 9283 4144
and to Omega (UK) Ltd
Address: 145 Cannon Street, London EC4N 5BT
Fax No: 0011 44 171 929 3555
Attn: J Storey
and to Omega Healthcare Investors Inc
Address: 905 W Eisenhower Circle
Ann Arbor MI 48103
Fax No: 0011 1 313 996 0020
Attn: Essel Baitey
ITEM 3: JURISDICTION
New South Wales
ITEM 4: MAXIMUM PROSPECTIVE LIABILITY
$10,000,000.00
EXECUTED AS A DEED
<PAGE> 306
- -34-
The common seal of MORAN HEALTH CARE GROUP
PTY LIMITED is affixed in accordance
with its articles of association:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Signature of authorised person Signature of authorised person
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Office held Office held
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Name of authorised person (print) Name of authorised person (print)
The common seal of PREMIER CARE AUSTRALIA
PTY LIMITED is affixed in accordance
with its articles of association:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Signature of authorised person Signature of authorised person
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Office held Office held
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Name of authorised person (print) Name of authorised person (print)
<PAGE> 307
ANNEXURE A
(irrevocable direction)
<PAGE> 308
IRREVOCABLE DIRECTION
TO: THE PERSON(S) WHOSE NAME, ACN AND ADDRESS APPEARS IN ITEM 1 OF
THE SCHEDULE ("COMPANY")
FROM: THE PERSON(S) WHOSE NAME, ACN AND ADDRESS APPEARS IN ITEM 2 OF
THE SCHEDULE ("SHAREHOLDER")
1 The Shareholder notifies you that it has mortgaged the shares,
notes, option and other rights described in item 3 of the schedule
and any other shares, notes, options and other rights now or in
the future held by it in the Company to Mortgagee Pty Limited
("MORTGAGEE").
2 The Shareholder directs the Company to forward any of the
following to Mortgagee at its address set out above.
(a) any certificates or other documents of or evidencing title
in any of the shares, notes, options and other rights or
otherwise now or in the future registered in the name of
the Shareholder; and
(b) following an Event of Default, all dividend and other
payment cheques arising in respect of those shares, notes,
options and other rights.
3 This direction is irrevocable until Mortgagee gives the Company
written notice that it is no longer to apply.
4 This notice and direction is given to you pursuant to a
requirement in the mortgage given by the Shareholder to Mortgagee
and Mortgagee is relying upon the Company's compliance with this
direction.
SCHEDULE
ITEM 1: COMPANY
Name: Moran Health Care (Australia) Pty Limited
ACN: 082 466 457
Address: 13 - 15 Bridge Street, Sydney
ITEM 2: SHAREHOLDER
Name: Moran Health Care Group Pty Limited
ACN: 008 585 242
<PAGE> 309
Address: 13 - 15 Bridge Street, Sydney
ITEM 3: DESCRIPTION OF SHARES
2 Ordinary shares
Dated: 199
The common seal of MORAN HEALTH CARE
GROUP PTY LIMITED is affixed in accordance
with its articles of association:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Signature of authorised person Signature of authorised person
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Office held Office held
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Name of authorised person (print) Name of authorised person (print)
<PAGE> 310
CONTENTS
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Interpretation 3
1.3 Joint and several 4
1.4 Successors and assigns 4
1.5 Headings and table of contents 4
1.6 References to and calculations of time 4
1.7 Corporate relationships 5
1.8 Defined terms in the Lease 5
2. MORTGAGE 5
2.1 Absolute assignment 5
2.2 Title documents 5
2.3 Transfer forms 5
2.4 Redemption 6
3. PERFORMANCE OF MORTGAGOR'S OBLIGATIONS GENERALLY 6
3.1 Performance of all obligations 6
3.2 Mortgagee's right to remedy 6
4. PAYMENT OF SECURED MONEY 6
4.1 Time for payment 6
4.2 Payment following an Event of Default 7
4.3 Payment without deduction or set-off 7
4.4 Credit for payment 7
4.5 Application of payments 7
4.6 Place for payment of money 7
4.7 Set-off against other accounts 7
4.8 Overpayment 8
4.9 Payment in wrong currency 8
4.10 Deposit Accounts 8
5. INTEREST AND FEES 9
5.1 Payment of interest 9
5.2 Calculation of interest and fees 9
6. UNDERTAKINGS RELATING TO THE MORTGAGED PROPERTY 9
6.1 Provision of notices relating to the Mortgaged Property 9
6.2 Voting 10
6.3 Dividends 10
6.4 Rights issues 10
6.5 Calls and other payments 10
6.6 New issues 11
<PAGE> 311
7. NEGATIVE COVENANTS 11
7.1 Prohibition on dealing with the Mortgaged Property 11
7.2 Prohibition on set-off 11
7.3 Prohibition on acts prejudicial to Mortgagee's security 11
7.4 Prohibition on conversion of Mortgaged Property 11
7.5 Other prohibitions not to be affected 12
8. PROVISIONS APPLYING TO A TRUSTEE MORTGAGOR 12
8.1 Application of clause 8 12
8.2 Representations and warranties relating to the Trust 12
8.3 Specific prohibitions relating to the Trust 13
8.4 General obligations relating to the Trust 13
8.5 Trustee's right of indemnity 13
8.6 New trustees 13
8.7 Mortgagor's liability unlimited 14
9. WARRANTIES AND INDEMNITIES 14
9.1 Warranties 14
9.2 Indemnities 14
10. PROVISION OF INFORMATION AND ACCESS TO MORTGAGE 16
10.1 Notification of matters to Mortgagee 16
11. EVENTS OF DEFAULT AND MORTGAGEE'S POWERS 16
11.1 Mortgagor to prevent Event of Default 16
11.2 Event of Default 16
11.3 Notification of Events of Default 19
11.4 No default certificate 19
11.5 Report by qualified accountant 19
12. MORTGAGEE'S POWERS FOLLOWING EVENT OF DEFAULT 19
12.1 Exercise of powers generally 19
12.2 Mortgagee's general powers 20
12.3 Exercise of powers by agent 22
13. PROVISIONS RELATING TO MORTGAGEE'S POWERS 22
13.1 Powers are in addition to statutory powers 22
13.2 Waiver of statutory notices 22
13.3 Protection of purchasers 22
13.4 Specific authority to exercise powers 22
13.5 Protection of Mortgagee 23
13.6 Money outlaid is secured 23
13.7 Entitlement to charge commissions 23
13.8 Mortgagee may give up possession of Mortgaged Property 23
14. POWER OF ATTORNEY 23
14.1 Mortgagee as Mortgagor's attorney 23
14.2 Conflicts of duty 24
<PAGE> 312
14.3 Attorney's indemnity and costs 24
15. PRESERVATION OF MORTGAGEE'S RIGHTS 24
15.1 General preservation of rights 24
15.2 No merger 25
15.3 No suspension of payment obligation 25
15.4 Partnership Mortgagor 25
15.5 New and suspense accounts 25
15.6 Mortgagor not to prove in competition or claim subrogation 26
15.7 No order in exercise of securities 26
15.8 Re-instatement of Mortgagee's rights 26
16. FURTHER ASSURANCES 27
16.1 Perfection of Security 27
16.2 Mortgagor's security from Debtor 27
17. MORTGAGEE'S RIGHT TO ASSIGN 27
17.1 Assignment 27
17.2 Disclosure of information 27
18. COSTS 28
18.1 Mortgagor to pay all costs 28
18.2 Mortgagor to pay stamp duty and other duties 28
18.3 Payment of Mortgagee's administration fee 28
19. GENERAL 29
19.1 Signing of notices by Mortgagee 29
19.2 Service of demand notice 29
19.3 Mortgagor's statement of money owing conclusive evidence 30
19.4 Registration and requisitions 30
19.5 No moratorium 30
19.6 Time of the essence for Mortgagor's obligations 30
19.7 Mortgagee ' consents 30
19.8 Survival of personal covenants and agreements 31
19.9 Severability of provisions 31
19.10 Applicable law 31
19.11 Maximum prospective liability 31
19.12 Conflict with Transaction Documents 32
SCHEDULE TO MORTGAGE OF SHARES 33
IRREVOCABLE DIRECTION 36
<PAGE> 313
<PAGE> 314
MORTGAGE OF UNITS
MORAN HEALTH CARE GROUP PTY LIMITED
PREMIER CARE AUSTRALIA PTY LIMITED
[PHILLIPS FOX LAWYERS LOGO]
255 Elizabeth Street Sydney NSW 2000 Australia
Tel +61 2 9286 8000 Fax +61 2 9283 4144 DX 107 SYDNEY
Email: [email protected] WWW site: http://www.Phillips
Fox.com.au
<PAGE> 315
MORTGAGE OF UNITS
(securing all money owing at any time as a principal debtor or guarantor)
THIS AGREEMENT IS MADE AS A DEED POLL ON 19
BY: THE PERSON(S) WHOSE NAME, ADDRESS AND ACN APPEARS IN ITEM 1 OF THE
SCHEDULE ("MORTGAGOR")
TO: PREMIER CARE AUSTRALIA PTY LIMITED ACN 069 875 476 of Level 12, 255
Elizabeth Street, Sydney, New South Wales in its own capacity and as
trustee of the Assisted Living Unit Trust (Mortgagee)
RECITALS
Mortgagee has granted the Lease to the Debtor and entered into the Transaction
Documents upon the upon the condition that the Mortgagor as the sole unitholder
of the Moran Trust enters into this mortgage.
AGREEMENTS
I. DEFINITIONS AND INTERPRETATION
A. DEFINITIONS
1. Where commencing with a capital letter:
"BUSINESS" means the business carried on by the Debtor from time to
time;
"COMPANY" means the company or companies in respect of which the
Mortgaged Property is issued;
"CONTROLLER" means a Controller as defined in Section 9 of the
Corporations Law;
"DEBTOR" means Moran Health Care (Australia) Pty Limited as trustee of
the Moran Trust and includes any other person who at any time in any
capacity has obligations to Mortgagee in respect of which the Mortgagor
has given a guarantee or indemnity to Mortgagee and may include the
Mortgagor;
"EVENT OF DEFAULT" means any event or circumstance referred to in
clause 11.2;
"LEASE" means the property lease dated about the same date as this deed
relating to the Business and made between Mortgagee as lessor and the
Debtor as lessee:
"MORAN TRUST" means the unit trust deed dated 13 May 1998 between the
Company as trustee and the Mortgagor as Original Unit Holder.
"MORTGAGED PROPERTY" means:
<PAGE> 316
2
a. unit trust certificates government securities certificates,
certificates for shares or stock and transfers of shares and
stocks, certificates and other securities belonging to the
Mortgagor which have been or are deposited with Mortgagee as
security for the obligations of Mortgagor to Mortgagee
pursuant to this mortgage.
b. money owing presently or in the future to the Mortgagor in
respect of the Mortgaged Property; and
c. property presently or in the future attaching to the Mortgaged
Property or presently or in the future acquired by the
Mortgagor pursuant to any Mortgaged Property;
"RELATED BODY CORPORATE" has the same meaning as is given to that term
in the
Corporations Law;
"SECURED MONEY" means any money which at any time and whether under
this deed, a Transaction Document or any other arrangement:
(a) the Mortgagor or Debtor in any capacity and whether alone or
with others:
(1) is actually or contingently liable to pay Mortgagee;
or
(2) may become actually or contingently liable to pay to
Mortgagee in the future pursuant to any transaction
or arrangement at any time entered into or made by
Mortgagee with any person; or
(3) may become actually or contingently liable to pay to
Mortgagee in the future as liquidated or unliquidated
damages pursuant to any claim or cause of action;
(b) can be debited to any account of the Mortgagor or any Debtor
with Mortgagee;
(c) is at any time advanced or paid by Mortgagee to a person with
the express or implied consent or at the express or implied
request of the Mortgagor or a Debtor; or
(d) Mortgagee is or may become actually or contingently liable to
pay a person in connection with a transaction or arrangement
entered into with the express or implied consent or at the
express or implied request of the Mortgagor or a Debtor.
"SECURITY" means any guarantee or indemnity given in respect of an
obligation of the Debtor, Mortgagor or Security Provider under any
agreement between the Debtor, Mortgagor or Security Provider with
Mortgagee and any legal or equitable mortgage, charge or other security
of any nature which secures such guarantee or indemnity or which
secures an obligation or liability of the Debtor, Mortgagor or Security
Provider under any agreement between the Debtor, Mortgagor or Security
Provider with Mortgagee;
<PAGE> 317
3
"SECURITY PROVIDER" means any person who at any time gives or has given
a Security to Mortgagee to secure any obligations of the Debtor or
Mortgagor to Mortgagee;
"TRUST" means a trust or settlement pursuant to which the Mortgagor
holds any Mortgaged Property;
"TRUST DEED" means the instrument setting out all the terms currently
governing a Trust.
2. Where any word or phrase is given a defined meaning any other part of
speech or other grammatical form in respect of that word or phrase has
a corresponding meaning.
B. INTERPRETATION
1. A reference to:
a. a business day means a day, Monday to Friday during which
banks are open for general banking business in the state or
territory whose laws apply in the construction of this
mortgage;
b. an item means an item of the schedule;
c. a time of day means that time of day in the state or territory
the laws of which apply in the construction of this mortgage;
and
d. a person being associated with another person or a company
being related to or the subsidiary of another corporation or
being a holding company has the same meaning as in the
Corporations Law.
2. Unless the context otherwise requires a word which denotes:
a. the singular denotes the plural and vice versa; and
b. any gender includes the other gender.
3. Unless the context otherwise requires a reference to:
a. any legislation includes any regulation, by laws or instrument
made under it and any orders or instruments having the force
of law and where amended, re-enacted or replaced means that
amended, re-enacted or replacement legislation;
b. any other agreement or instrument where amended, novated or
replaced means that agreement or instrument as amended,
novated or replaced;
c. a clause, schedule or annexure is a reference to a clause of,
annexure to or schedule to this mortgage;
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d. a group of persons (including the Mortgagor if 2 or more
persons) includes any one or more of them;
e. any thing or amount is a reference to the whole and each part
of it; and
f. any legislation or legislative provision includes any
statutory modification or reenactment of a legislative
provision substituted for, and any statutory instrument issued
under that legislation.
C. JOINT AND SEVERAL
Any agreement warranty representation or obligation which binds or
benefits 2 or more persons under this mortgage binds or benefits those
persons jointly and severally.
D. SUCCESSORS AND ASSIGNS
A person includes:
a. the trustee, executor, administrator, successor in title and
assignee of that person; and
b. a corporation, firm, partnership, joint venture association,
trust, authority and a government.
This clause must not be construed as permitting the Mortgagor to assign
any right under this mortgage.
E. HEADINGS AND TABLE OF CONTENTS
Headings and table of contents must be ignored in the interpretation of
this mortgage.
F. REFERENCES TO AND CALCULATIONS OF TIME
1. Unless the context otherwise requires a reference to a time of day
means that time of day in the jurisdiction whose laws apply to this
mortgage.
2. For the purposes of determining the length of a period (but not its
commencement) a reference to:
a. a day means a period of time commencing at midnight and ending
24 hours later; and
b. a month means a calendar month which is a period commencing at
the beginning of a day of one of the 12 months of the year and
ending immediately before the beginning of the day of the
corresponding date of the next month, or if there is no such
corresponding date, ending at the expiration of the next
month.
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3. Where a period of time is specified from a given day or the day of an
act or event it must be calculated exclusive of that day.
4. Where something is done or received after 5.00pm on any day it will be
deemed to have been done or received on the following day.
5. A provision of this mortgage which has the effect of requiring anything
to be done on or by a date which is not a business day must unless the
context otherwise requires be interpreted as if it required it to be
done on or by the immediately preceding business day.
G. CORPORATE RELATIONSHIPS
A reference to a person being an associate of another person or a
company being related to or the subsidiary of another corporation or
being a holding company has the same meaning as in the Corporations
Law.
1.8 DEFINED TERMS FROM LEASE
Words which have a defined meaning in the Lease have the same meaning
when used in this deed unless the same word is also defined in this
deed, in which case the definition in this deed prevails.
II. MORTGAGE
A. ABSOLUTE ASSIGNMENT
The Mortgagor as beneficial owner absolutely assigns and conveys the
Mortgaged Property to Mortgagee free of all charges, liens and other
encumbrances and free of any liability to attachment.
B. TITLE DOCUMENTS
Subject to the rights of the holder of any prior ranking mortgage or
charge the Mortgagor must immediately on request by Mortgagee lodge
with Mortgagee all documents of or evidencing title to any Mortgaged
Property. The Mortgagor must with this mortgage provide Mortgagee with
an irrevocable direction as set out in annexure A for delivery to the
Company. Upon the substitution or replacement of any document which
evidences title to any of the Mortgaged Property the Mortgagor will
lodge the substituted or replaced document with Mortgagee.
C. TRANSFER FORMS
The Mortgagor must:
a. on the date of this mortgage in respect of all Mortgaged
Property; and
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b. on the date that Mortgaged Property are subsequently created,
deliver to Mortgagee transfers of the Mortgaged Property in a form
acceptable to enable the Mortgagor's rights, title and interest in the
Mortgaged Property to be transferred to Mortgagee.
D. REDEMPTION
Upon payment in full of the Secured Money and Mortgagee being satisfied
that no Secured Money will arise in the future by virtue of any current
transaction or circumstance, Mortgagee must at the written request and
cost of the Mortgagor absolutely assign and convey the Mortgaged
Property back to the Mortgagor, redeliver all documents of or
evidencing title to any Mortgaged Property and advise the Company that
the direction given pursuant to clause 2.2 is revoked.
III. PERFORMANCE OF MORTGAGOR' S OBLIGATIONS GENERALLY
A. PERFORMANCE OF ALL OBLIGATIONS
In addition to its obligations under this mortgage the Mortgagor must:
a. duly perform all of its other obligations (both positive and
negative) at any time owed to Mortgagee including the
Transaction Documents; and
b. duly perform or cause to be performed all of the obligations
of any Debtor or Security Provider at any time owed to
Mortgagee whether or not the Mortgagor has consented to the
Debtor or Security Provider undertaking such obligations.
B. MORTGAGEE'S RIGHT TO REMEDY
If the Mortgagor, Debtor or Security Provider fails to duly perform any
obligation owed to Mortgagee, then Mortgagee may do anything it
considers appropriate to protect its interests. The costs of and
liabilities incurred from any such action must be paid by the Mortgagor
upon demand. Action by Mortgagee to protect its interests does not
amount to waiver of a Event of Default.
IV. PAYMENT OF SECURED MONEY
A. TIME FOR PAYMENT
All payments required under this mortgage must be made by the Mortgagor
in full in immediately available funds prior to 4.00 p.m. on the
relevant due date (or any earlier time specified) without any
deduction. The Mortgagor irrevocably and unconditionally waives any
right of set-off, combination or counterclaim in relation to such
payments.
B. PAYMENT FOLLOWING AN EVENT OF DEFAULT
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If an Event of Default occurs the Mortgagor must pay the Secured Money
to Mortgagee immediately upon demand.
C. PAYMENT WITHOUT DEDUCTION OR SET-OFF
Secured Money must be paid in full without any deduction. The Mortgagor
waives all rights of set-off, combination or counterclaim in relation
to payment of Secured Money.
D. CREDIT FOR PAYMENT
The Mortgagor will be given credit for payment only upon its actual
receipt by Mortgagee in immediately available funds in the currency in
which it is due. Subject to any obligation to make payment by an
earlier time, if payment is received by Mortgagee on a day which is not
a business day or after 4.00pm (at the place payment is due to be made)
on any business day, Mortgagee may refuse to credit receipt until the
next business day in which case the Mortgagor must pay interest on that
amount until the receipt is so credited.
E. APPLICATION OF PAYMENTS
1. The Mortgagor irrevocably waives its right to determine the
appropriation of any money paid to Mortgagee. All payments may be
applied at the sole discretion of Mortgagee and any rule relating to
the application of money does not apply.
2. Any money received by Mortgagee in excess of Secured Money will, unless
an Event of Default has occurred or is continuing, be refunded to the
Mortgagor.
F. PLACE FOR PAYMENT OF MONEY
Subject to any express written agreement to the contrary all Secured
Money must be paid to Mortgagee at the place notified to the Mortgagor,
or, in the absence of notice, at Mortgagee's address in this mortgage.
G. SET-OFF AGAINST OTHER ACCOUNTS
The Mortgagor irrevocably authorises Mortgagee at any time without
notice (without notice to the Mortgagor and irrespective of any
outstanding cheques) to deduct from, set-off against, or combine with
any amount in any currency standing to the credit of any account of the
Mortgagor with Mortgagee, any related corporation of Mortgagee or other
financial institution anywhere in the world in or towards satisfaction
of any sum at any time due and payable by the Mortgagor under this
mortgage. Mortgagee has no obligation to effect any set-off under this
clause. This right is in addition to any rights arising under general
law.
H. OVERPAYMENT
Mortgagee is not required to pay or credit the Mortgagor with interest
on overpayment of the Secured Money.
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I. PAYMENT IN WRONG CURRENCY
If Mortgagee receives payment of the Secured Money in a currency other
than that in which payment is due the Mortgagor will be given credit:
a. by reference to the spot rate at which Mortgagee is able to
directly or indirectly purchase the currency in which the
payment is due;
b. for the amount of the correct currency purchased after
deducting the costs of conversion (which may include a
commission charge by Mortgagee ); and
c. on the date of settlement of the conversion into the currency
in which the payment is due.
V. INTEREST AND FEES
A. PAYMENT OF INTEREST
1. Subject to clause 5.1.2 the Mortgagor must pay Mortgagee interest
calculated daily at the Overdue Rate on any Secured Money which does
not otherwise bear interest from the earlier of the date it became
payable to or was outlaid by Mortgagee to the date of payment.
2. The Debtor must pay Mortgagee interest calculated daily at the Overdue
Rate on the outstanding amounts of any Secured Money and other money
(including interest) not paid when payable.
3. Subject to clause 5.1.4, interest on Secured Money must be paid in the
manner and on the interest payment dates agreed from time to time
(including by payment in advance). If no times are specified or agreed,
interest on Secured Money must be paid upon demand by Mortgagee from
time to time. Other interest must be paid as agreed from time to time
or, if not, upon demand by Mortgagee from time to time.
4. If an Event of Default occurs, interest accruing on Secured Money and
any other money owing is payable upon demand by Mortgagee.
B. CALCULATION OF INTEREST AND FEES
Interest under this mortgage and any fees calculated at a per year rate
must be calculated on the basis of a 365 day year on the basis of
actual days elapsed.
VI. UNDERTAKINGS RELATING TO THE MORTGAGED PROPERTY
A. PROVISION OF NOTICES RELATING TO THE MORTGAGED PROPERTY
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The Mortgagor must without delay forward to Mortgagee copies of notices
of meetings and other communications and documents sent by the Company
to the Mortgagor.
B. VOTING
1. The Mortgagor must exercise any right to vote arising in respect of the
Mortgaged Property as directed by Mortgagee, following the occurrence
of an Event of Default.
2. At any time following the occurrence of an Event of Default the
Mortgagor must in the form acceptable to the Company give Mortgagee or
its nominee a proxy in relation to any meeting or meetings with
authority to vote in the proxy's discretion.
C. DISTRIBUTIONS
1. In this clause distributions means any money received from the Company
by the Mortgagor in respect of the Mortgaged Property whether by way of
distribution, dividend, or return of capital.
2. Other than Management Fees, the Mortgagor agrees that it is not
entitled to distributions in respect of Mortgaged Property during the
period which is the second year of the term of the Lease. Any
distributions received by the Mortgagor in that period must be held in
trust for Mortgagee.
3. Notwithstanding clause 6.3.2 and so long as there is no breach of a
Transaction Document, the Mortgagor will be entitled to keep, for its
own use distributions which it receives from the Debtor and relate to
the second year of the Lease. The right to receive such distributions
is conditional on the Mortgagor lending to the Debtor on terms approved
by the Mortgagee an amount equal to the amount of distributions
received from the Debtor.
VII. NEGATIVE COVENANTS
A. PROHIBITION ON DEALING WITH THE MORTGAGED PROPERTY
1. The Mortgagor must not without Mortgagee's consent:
a. sell, lease, charge, encumber, surrender, grant any interest
in or power over or otherwise in any manner deal or agree or
attempt to deal with any Mortgaged Property or any interest in
any Mortgaged Property; or
b. permit any charge, lien, pledge, hypothecation, security,
trust or power to arise or exist in respect of any Mortgaged
Property.
2. The Mortgagor's statutory powers to deal with the Mortgaged Property
are, to the fullest extent possible, excluded.
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3. The Mortgagor will not be in default of its obligations under clause
7.1.1 because a charge arises by legislation in favour of a
governmental agency except where the Mortgagor has not paid when
payable money owing to that governmental agency.
B. PROHIBITION ON SET-OFF
The Mortgagor must prevent any set-off except to Mortgagee or
combination of accounts in respect of any book debt.
C. PROHIBITION ON ACTS PREJUDICIAL TO MORTGAGEE'S SECURITY
The Mortgagor must not exercise any right arising in relation to the
Mortgaged Property or directly or indirectly cause or influence any
decision of the Company (whether by its directors or shareholders) or
any person which has or may have an adverse affect on Mortgagee's
security under this mortgage or its value.
D. PROHIBITION ON CONVERSION OF MORTGAGED PROPERTY
The Mortgagor must not without the prior consent of Mortgagee:
a. permit any Mortgaged Property to be converted to another
class;
b. waive, delay, or permit the Company to avoid or delay, any
obligation or preferential right in respect of any Mortgaged
Property; or
c. convert any note which is a Mortgaged Property.
E. OTHER PROHIBITIONS NOT TO BE AFFECTED
Nothing in this mortgage affects any other prohibition agreed by the
Mortgagor with Mortgagee.
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VIII. PROVISIONS APPLYING TO A TRUSTEE MORTGAGOR
A. APPLICATION OF CLAUSE 8
Clause 8 applies where the Mortgagor is the owner or registered
proprietor of Mortgaged Property as trustee of a Trust.
B. REPRESENTATIONS AND WARRANTIES RELATING TO THE TRUST
Where the Mortgagor is acting as trustee of the Trust, the Mortgagor
warrants to Mortgagee that:
a. the Trust is validly created and existing and no
circumstancens exist pursuant to which it may be determined
and no date for the vesting of any of the Trust fund has
been appointed;
b. the Mortgagor has provided Mortgagee with true copies of all
the documents currently constituting the Trust Deed;
c. the Mortgagor is validly appointed as the sole trustee of the
Trust, is not in breach of its obligations as trustee and no
circumstances exist pursuant to which it may be removed;
d. this mortgage is duly executed and granted pursuant to and in
proper exercise of the powers of the Mortgagor as trustee of
the Trust and all formalities required by the Trust Deed in
connection with this mortgage have been complied with;
e. the use and performance of its obligations by the Mortgagor
under this mortgage are for the proper purpose of and provides
commercial benefit to the Trust;
f. the Mortgagor is entitled to be fully indemnified out of the
assets of the Trust in respect of its liability under this
mortgage;
g. the Mortgagor is the legal owner of all the assets of the
Trust;
h. there is no dispute between the Mortgagor and any other
person in relation to the
Trust or the Trust assets; and
i. the Mortgagor is empowered by the Trust Deed to carry on its
business as now conducted or contemplated and to own its
property and assets in its capacity as trustee of the Trust
and there is no restriction or condition upon such activity by
it.
C. SPECIFIC PROHIBITIONS RELATING TO THE TRUST
The Mortgagor must not without Mortgagee's consent not to be
unreasonably withheld:
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a. cease to be the only trustee of the Trust or do anything which
would cause or enable its removal;
b. cause or permit the Trust to be determined or a vesting date
to be appointed;
c. do or permit anything which adversely affects the Mortgagor's
right of indemnity against the Trust assets;
d. in any way vary the Trust Deed or permit it to be varied;
e. resettle, set aside, distribute or dispose of any Trust
assets; or
f. delegate any powers of the Mortgagor as trustee of the Trust
or exercise any power of appointment.
D. GENERAL OBLIGATIONS RELATING TO THE TRUST
1. The Mortgagor must at the request of Mortgagee provide full financial
details of the Trust.
2. The Mortgagor irrevocably and unconditionally grants Mortgagee direct
access to the Trust fund to recover any money not paid when payable
under this mortgage.
E. TRUSTEE'S RIGHT OF INDEMNITY
Without limiting any right of subrogation Mortgagee may have, the
Mortgagor must at Mortgagee's request exercise the Mortgagor's right of
indemnity against Trust assets to enable payment of the Secured Money
to Mortgagee.
F. NEW TRUSTEES
The Mortgagor must procure that any person who becomes a trustee of the
Trust (whether in replacement of or in addition to the Mortgagor)
enters into a deed with Mortgagee whereby it agrees to perform the
obligations of the Mortgagor under this mortgage.
G. MORTGAGOR'S LIABILITY UNLIMITED
The Mortgagor's liability under this mortgage is not in any way limited
or otherwise affected by the Mortgagor being trustee of any trust or
the extent of its ability to indemnify itself out of the assets of the
Trust.
IX. WARRANTIES AND INDEMNITIES
A. WARRANTIES
The Mortgagor warrants to Mortgagee that:
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a. this mortgage constitutes and will continue to constitute a
valid and binding security enforceable in accordance with its
terms;
b. no Event of Default has occurred and no event occurred and no
circumstance exists which with the giving of notice, lapse of
time or fulfilment of any condition would constitute an Event
of Default;
c. the Mortgagor has obtained all necessary consents and complied
with all internal procedures in relation to the execution and
performance of this mortgage;
d. no other person has any interest or rights in respect of the
Mortgaged Property;
e. the Mortgagor has disclosed to Mortgagee the full extent of
the interests in and control of the Mortgagor;
f. where the Mortgage secures money owing by a Debtor the
Mortgagor (where it is a company) is receiving valuable
commercial benefit for giving this mortgage;
B. INDEMNITIES
The Mortgagor irrevocably and unconditionally indemnifies Mortgagee
against all actions, claims, demands, losses (including without
limitation loss of margin), damages, liabilities, costs and expenses of
any nature incurred at any time actually or contingently by Mortgagee
as a direct or indirect consequence of:
a0. a failure by the Mortgagor or the Debtor to pay any Secured
Money when payable or comply with any other obligation owed to
Mortgagee;
b0. the occurrence of an Event of Default
c0. Mortgagee or an attorney lawfully appointed under this
mortgage exercising or attempting to exercise any power or
right under this mortgage, in any other agreement between the
Mortgagor and Mortgagee or at general law;
d0. Mortgagee entering into any agreement or transaction in
connection with this mortgage;
e0. Mortgagee seeking to recover any Secured Money from any other
person liable to pay it;
f0. an actual or assumed legal obligation of Mortgagee to pay any
money or do any thing in connection with the Mortgaged
Property;
g0. a warranty in this mortgage being incorrect in any respect;
h0. judgment being given for any Secured Money in a currency other
than that which that Secured Money is due;
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i0. the rate of interest applying to any judgment debt being less
than that applying to the original obligation to pay Secured
Money in respect of which judgment was obtained;
j0. Mortgagee receiving payment of Secured Money earlier or later
than the date it should be paid if no Event of Default had
occurred;
k0. a claim that a payment, obligation, settlement, transaction,
conveyance or transfer in connection with Secured Money (or
money which would be Secured Money if the claim was invalid)
is void or voidable under any law relating to insolvency,
bankruptcy or the protection of creditors or for any other
reason being upheld conceded or compromised;
l0. Mortgagee properly acting as the Mortgagor's attorney or
providing any indemnity to any person so acting;
m0. Mortgagee paying (whether or not under a legal obligation) any
loss, cost or expense incurred by any officer, employee, agent
or consultant of Mortgagee in connection with this mortgage;
n0. any dispute between the Mortgagor or the Debtor and any other
person;
o0. any agreement relating to any Secured Money being or becoming
void or unenforceable; and
p0. any new law or any change in any law or in the interpretation
of any law.
1. The Mortgagor's obligations to indemnify Mortgagee are absolute,
irrevocable and unconditional and continue (irrespective of discharge
of this mortgage) until an express release is given. The Mortgagor
waives any right or claim which may have the effect of reducing or
impairing the indemnities given by it.
X. PROVISION OF INFORMATION AND ACCESS TO MORTGAGEE
A0. NOTIFICATION OF MATTERS TO MORTGAGEE
1. The Mortgagor must immediately notify Mortgagee of the following:
a0. the occurrence of an Event of Default or an event or
circumstance which would with the giving of notice, lapse of
time or fulfilment of any condition be likely to become an
Event of Default;
b0. the receipt by the Mortgagor of any demand pursuant to
section 459E of the Corporations Law; and
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c0. anything which gives or may give rise to a claim for
compensation in relation to Mortgaged Property; and
d0. the appointment of an administrator under Division 2 of Part
5.3A of the Corporations Law ("ADMINISTRATOR").
2. The Mortgagor must provide Mortgagee with such other information
following notification under clause 10.1 as Mortgagee requires.
XI. EVENTS OF DEFAULT AND MORTGAGEE'S POWERS
A0. MORTGAGOR TO PREVENT EVENT OF DEFAULT
The Mortgagor must prevent the occurrence of an Event of Default and
acknowledges that it will be in default under this mortgage if an Event
of Default occurs.
B0. EVENT OF DEFAULT
An Event of Default will occur if:
a0. a Mortgagor, Debtor, Security Provider or Related Body
Corporate fails to pay when payable any money owing at any
time to Mortgagee or any company associated with Mortgagee at
any time;
b0. a Mortgagor, Debtor, Security Provider or Related Body
Corporate fails to perform any non monetary obligation owing
at any time to Mortgagee or any company associated with
Mortgagee at any time and, to the extent that the failure is
capable of remedy within 5 business days, it continues for 5
business days after written notice from Mortgagee requiring
its remedy;
c0. Mortgagee becomes entitled to demand immediate payment of
money secured by a Security or to enforce that Security or
would have become so entitled but for any legislation
requiring notice or lapse of time;
d0. a warranty, representation, answer to requisition or statutory
declaration at any time made or given by or on behalf of a
Mortgagor, Debtor, Security Provider or Related Body Corporate
if material is found to be incorrect or misleading;
e0. a Mortgagor, Debtor or Security Provider or Related Body
Corporate becomes an externally-administered body corporate as
defined in the Corporations Law or if an application is made,
proceedings are initiated, a meeting (of shareholders,
creditors or directors) is called, notice is given or an
appointment is made or proposed which Mortgagee considers may
lead to that;
f. notice is given or published or action is taken with a view to
cancelling the registration of a Mortgagor, Debtor, Security
Provider or Related Body Corporate or appointing an inspector
or other officer to investigate any of its affairs pursuant to
any legislation;
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g0. a receiver, receiver and manager, liquidator or Controller is
appointed in respect of the Mortgagor, the Debtor or a
Security Provider;
h0. where a Mortgagor, Debtor, Security Provider or Related Body
Corporate is a partnership, that partnership is dissolved, an
application is made for its dissolution or more than 20% of
its members retire in any 6 month period:
i0. where the Mortgagor, Debtor, Security Provider or Related Body
Corporate is a joint venture, that joint venture is
terminated;
j0. a judgment for more than $25,000.00 (increased by an amount of
$25,000.00 every 3 years for a period of 15 years from the
date of this deed) is entered in any court against a
Mortgagor, Debtor or Security Provider or Related Body
Corporate and not satisfied, appealed or set aside within 28
days;
k0. a Mortgagor, Debtor, Security Provider or Related Body
Corporate stops payment of its debts or ceases or threatens to
cease to carry on any of its businesses;
l0. an event or circumstance occurs which entitles a person to
cancel, terminate or demand repayment of any credit or
financial accommodation extended to a Mortgagor, Debtor,
Security Provider or Related Body Corporate or exercise any
right under any security for such credit or financial
accommodation;
m0. where the Mortgagor, Debtor, Security Provider or Related Body
Corporate is a corporation which is not listed on a recognised
Australian stock exchange there is a change in the ownership
(at the date of this mortgage) of more than 25% of the issued
voting shares in the Mortgagor, Debtor, Security Provider or
Related Body Corporate or there is a change in the control of
the Mortgagor, Debtor, Security Provider or Related Body
Corporate without Mortgagee's consent except where the change
in ownership is as a result of transfer or sale to an
Associated Entity;
n0. in Mortgagee's reasonable opinion there is a change in the
persons who control the Mortgagor, the Debtor, Security
Provider or Related Body Corporate or in the activities of the
Mortgagor, Debtor or Security Provider;
o0. anything occurs in connection with an asset secured by
a Security (including without limitation, any pollution or
the issue of any notice requiring clean up) which, in
Mortgagee's reasonable opinion, has a material adverse
affect on the value or saleability of that asset;
p0. a demand under section 459E of the Corporations Law is served
on the Mortgagor, Debtor, Security Provider or Related Body
Corporate and a copy is not provided immediately after service
to Mortgagee;
q0. without limiting the operation of any other Event of Default,
any other event occurs or circumstance arises, financial or
otherwise, which, in the reasonable opinion of
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Mortgagee, is likely to materially and adversely affect the
ability of the Mortgagor, Debtor, Security Provider or Related
Body Corporate to meet its obligations to Mortgagee; or
r. the Debtor or Mortgagor breaches any term of the Lease or any
other Transaction Document to which it is a party and does not
remedy or rectify such breach in accordance with the Lease or
Transaction Document as the case may be.
C0. NOTIFICATION OF EVENTS OF DEFAULT
The Debtor must immediately notify Mortgagee of the occurrence of an
Event of Default or the existence of any circumstance which may lead to
the occurrence of an Event of Default.
D0. NO DEFAULT CERTIFICATE
Upon request, the Debtor must give Mortgagee a certificate signed by
the Debtor (or where a company, by 2 directors) stating whether or not
an Event of Default has occurred or is likely to occur.
E0. REPORT BY QUALIFIED ACCOUNTANT
1. Following the occurrence of an Event of Default and whether or not
Mortgagee has exercised any of its rights and powers on default, the
Mortgagor at its cost must at the request of Mortgagee promptly provide
Mortgagee with a report by a qualified accountant approved by Mortgagee
on the financial condition of the Mortgagor, the value of any Mortgaged
Property and any other related matter Mortgagee requires.
2. If the Mortgagor fails to obtain any such report then Mortgagee may
commission such a report the reasonable cost of which must be borne by
the Mortgagor. Mortgagee may pay the cost of obtaining any report, in
which case such cost will be deemed Secured Money.
3. For the purposes of providing the report in clause 11.5.1 the Mortgagor
will ensure Mortgagee or a qualified accountant approved by Mortgagee
has full and free access to the books and records of the Mortgagor and
the Mortgaged Property and any other related matter that Mortgagee may.
acting on the advice of the accountant, require. The Mortgagor will
ensure that the staff of the Mortgagor assist Mortgagee at all times.
XII. MORTGAGEE'S POWERS FOLLOWING EVENT OF DEFAULT
A0. EXERCISE OF POWERS GENERALLY
Whether or not Mortgagee has demanded payment of the Secured Money
Mortgagee may at any time following the occurrence of an Event of
Default in the manner and at the times it considers appropriate
(irrespective of any omission, neglect or delay):
a0. terminate or reverse any transaction or arrangement entered
into by Mortgagee at the express or implied request or with
the express or implied consent of the Mortgagor;
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b0. enter into any transaction and make any payment to extinguish
any actual or contingent liability incurred by Mortgagee at
the express or implied request or with the express or implied
consent of the Mortgagor;
c0. open or close any account of the Mortgagor with Mortgagee and
transfer any credit balance to any new or other account;
d0. dishonour any cheque or cancel any encashment arrangement or
other arrangement provided to the Mortgagor in connection with
this mortgage; or
e0. pay any other mortgagee or encumbrance of Mortgaged Property
any amount required to discharge or purchase (with or without
a transfer of its security) its debt.
The Mortgagor indemnifies Mortgagee upon demand against any liability,
cost or expense incurred pursuant to anything done under this clause.
B0. MORTGAGEE'S GENERAL POWERS
Whether or not Mortgagee has demanded payment of the Secured Money,
Mortgagee may at any time following the occurrence of an Event of
Default in the manner and at the times it considers appropriate
(irrespective of any omission, neglect or delay):
a0. become the registered holder of the Mortgaged Property;
b0. receive dividends, profits and other payments or benefits in
relation to the Mortgaged Property;
c0. take any action it considers necessary or desirable for the
preservation, maintenance or enhancement of the Mortgaged
Property or the security constituted by this mortgage:
d0. commence, conduct, defend, compromise, settle, discontinue or
submit to arbitration any proceedings, claims, questions or
disputes in connection with the Mortgaged Property or this
mortgage;
e0. prove any debt or liability owed to the Mortgagor in the
bankruptcy, insolvency or winding up of any person and
receive dividends and assent to any proposal for a
composition or scheme of arrangement;
f0. exercise the rights of the Mortgagor in connection with the
Mortgaged Property;
g0. perform obligations of the Mortgagor in connection with the
Mortgaged Property under this mortgage or otherwise;
<PAGE> 333
19
h0. renew, terminate, repudiate, rescind, vary, accept surrenders
of and exercise rights under any contract or arrangement
entered into by the Mortgagor, any predecessor in title or
Mortgagee (pursuant to the powers in this mortgage or at
general law) in connection with the Mortgaged Property;
i0. deal in any way with the Mortgaged Property;
j0. sell, surrender, dispose of, realise or convert into money the
Mortgaged Property on any terms and in any manner;
k0. grant upon any terms and in any manner an option to purchase
or acquire an interest in the Mortgaged Property;
l0. grant upon any terms and in any manner interests in or rights
over the Mortgaged Property;
m0. in the name and on behalf of the Mortgagor or otherwise,
borrow or obtain any form of financial accommodation upon any
terms in connection with the exercise of any power under this
mortgage or at general law;
n0. secure upon any terms and in any manner any money borrowed or
liability incurred by charge or mortgage over the Mortgaged
Property whether ranking in priority to, equally with or after
this mortgage;
o0. draw, accept, make and endorse any negotiable instrument;
p0. take up any rights issue or offer arising in connection with
the Mortgaged Property;
q0. delegate in any manner any of its powers and rights under this
mortgage or at general law;
r0. upon any terms and in any manner employ and terminate the
employment of persons and engage and terminate the engagement
of agents, contractors, consultants, advisers, auctioneers and
other persons in connection with its powers under this
mortgage or at general law;
s0. expend money, assume obligations and incur liabilities in
connection with any power under this mortgage or at general
law; and
t0. do anything else in Australia and elsewhere Mortgagee
considers necessary, desirable or convenient to be done in
connection with the recovery of Secured Money and anything
incidental or conducive to the exercise of any other power
under this mortgage or general law.
C0 EXERCISE OF POWERS BY AGENT
<PAGE> 334
20
Mortgagee may exercise its powers under this mortgage or general law by
itself or through any agent. The fees charged by any agent must be
paid by the Mortgagor.
XIII. PROVISIONS RELATING TO MORTGAGEE'S POWERS
A0. POWERS ARE IN ADDITION TO STATUTORY POWERS
The powers of Mortgagee under this mortgage are to be construed
separately and are independent of and in addition to any other legal,
equitable or statutory powers.
B0. WAIVER OF STATUTORY NOTICES
To the extent permitted by any legislation the Mortgagor agrees to
dispense with any notice of or lapse of time before Mortgagee may
exercise any option, power or right following the occurrence of any
Event of Default.
C0. PROTECTION OF PURCHASERS
The Mortgagor agrees that any person dealing with Mortgagee need not be
concerned whether any power of Mortgagee has arisen or with the
propriety of any transaction undertaken by Mortgagee.
D0. SPECIFIC AUTHORITY TO EXERCISE POWERS
The Mortgagor irrevocably and unconditionally authorises Mortgagee to
exercise its powers under this mortgage or any legislation
notwithstanding that the Event of Default giving rise to exercise of
such powers may subsequently be deemed never to have occurred. In such
circumstances the Mortgagor:
a0. does not have any claim against Mortgagee for trespass or for
any loss suffered by the Mortgagor other than because of fraud
or gross negligence on the part of Mortgagee; and
b0. indemnifies Mortgagee against any claim or loss arising other
than because of fraud or gross negligence.
E0. PROTECTION OF MORTGAGEE
The Mortgagor agrees that Mortgagee are not liable for any loss which
may arise because of any omission or delay in the exercise of any of
their respective powers under this mortgage or any legislation.
F0. MONEY OUTLAID IS SECURED
The Mortgagor must upon demand pay any money outlaid by Mortgagee in
exercising powers under this mortgage or at general law.
<PAGE> 335
21
G0. ENTITLEMENT TO CHARGE COMMISSIONS
Mortgagee may, in addition to any fee or other charge, charge a
commission in connection with the management of and collection of
income from Mortgaged Property to the extent that those tasks have not
been delegated to an agent.
H0. MORTGAGEE MAY GIVE UP POSSESSION OF MORTGAGED PROPERTY
Mortgagee may at any time give up possession of the whole or any part
of the Mortgaged Property.
XIV. POWER OF ATTORNEY
A0. MORTGAGEE AS MORTGAGOR'S ATTORNEY
For valuable consideration and following the occurrence of an Event of
Default the Mortgagor irrevocably appoints Mortgagee and its employees
at any time severally as its attorneys with power in the name of the
Mortgagor or the attorney to:
a0. do anything the Mortgagor should have done pursuant to this
mortgage or any Security;
b0. do anything the attorney considers necessary or desirable to
facilitate the exercise of any of Mortgagee's rights under
this mortgage or any Security, the payment to Mortgagee of
money owing under this mortgage or any Security or the
protection of Mortgagee's interests under this mortgage or any
Security;
c0. prepare, draw, complete, endorse, accept, deliver, present,
negotiate or otherwise deal with any bill of exchange in
relation to this mortgage;
d0. delegate its powers to any person for any period and revoke
such delegation;
e0. perform any obligation owed by the Mortgagor at any time to
Mortgagee;
f0. complete any blanks and correct any manifest errors in this
mortgage or any ancillary document or agree or give effect to
any such completion or correction and do all things necessary
to procure the registration of this mortgage as a valid
security with the priority intended by Mortgagee; or
g0. do anything in connection with the Mortgaged Property which
the Mortgagor could do including without limitation signing
any form or agreement to increase or vary priority
arrangements under the Corporations Law.
An attorney may act notwithstanding any conflict or interest in the
outcome.
B0. CONFLICTS OF DUTY
<PAGE> 336
22
An attorney appointed under clause 14.1 may act notwithstanding any
conflict of duty or a direct or personal interest in the means or
result.
C0. ATTORNEY'S INDEMNITY AND COSTS
1. The Mortgagor indemnifies any attorney against any liability or loss
arising from the proper exercise of any powers under this mortgage.
2. Mortgagee may indemnify any attorney in connection with the proper
exercise of its powers and the Mortgagor must reimburse any money paid
pursuant to any such indemnity.
XV. PRESERVATION OF MORTGAGEE'S RIGHTS
A0. GENERAL PRESERVATION OF RIGHTS
This mortgage is a continuing security for the Secured Money. The
liabilities of the Mortgagor under this mortgage and the rights of
Mortgagee or an attorney of the Mortgagor appointed under this mortgage
are not affected by:
a0. Mortgagee granting any time or indulgence to the Mortgagor or
another person;
b0. Mortgagee compounding or compromising with or wholly or
partially releasing any Debtor, Guarantor or other person;
c0. laches, acquiescence, delay, acts, omissions or mistakes by
Mortgagee or another person;
d0. Mortgagee taking, varying, wholly or partially discharging or
otherwise dealing with or losing or impairing any other
security for Secured Money;
e0. any security for or obligation to pay Secured Money being or
becoming void, voidable or unenforceable;
f0. any person who was intended to assume any actual or contingent
liability to pay Secured Money not doing so or not doing so
effectively or being discharged;
g0. any other transaction or arrangement between Mortgagee or any
other person; or
h0. anything else which might otherwise have such affect at law or
in equity.
B0. NO MERGER
1. Mortgagee's right to payment of Secured Money arising under any other
instrument does not merge with the Mortgagor's undertaking to pay
Secured Money under this mortgage.
<PAGE> 337
23
2. This mortgage does not merge with or affect any other security or any
judgment or order held at any time by Mortgagee.
C0. NO SUSPENSION OF PAYMENT OBLIGATION
Mortgagee may demand payment of Secured Money and exercise its other
rights and powers under this mortgage even if a negotiable instrument,
security, contract or other obligation relating to Secured Money is
still current or has not matured or fallen due.
D0. PARTNERSHIP MORTGAGOR
1. Where Secured Money includes any partnership indebtedness this
agreement continues to be binding notwithstanding any changes in the
partnership (including changes which result in the partnership business
being carried on by one person) and Secured Money includes the
indebtedness of the partnership following any such change. The
continuing partners of any such partnership will ensure that any
incoming partner is bound by all obligations to pay Secured Money and
that the incoming partner will sign all documents required by Mortgagee
evidencing the incoming partners obligations to Mortgagee for Secured
Money.
2. Mortgagee is under no obligation to release any Mortgagor who has
ceased to be a member of the partnership comprising the Mortgagor.
E0. MORTGAGOR NOT TO PROVE IN COMPETITION OR CLAIM SUBROGATION
The Mortgagor must not without Mortgagee's prior written consent:
a0. other than by its attorney appointed under this mortgage prove
in the bankruptcy or insolvency of a Debtor, Security Provider
or another Mortgagor or claim or receive the benefit of any
dividend, distribution or other payment pursuant to that
bankruptcy or insolvency; or
b0. directly or indirectly claim the benefit of any right, power,
remedy or security held by Mortgagee or of any distribution,
dividend or payment arising out of or relating to the
liquidation of the Debtor or any other person,
until the Secured Money has been paid in full to Mortgagee.
F0. NO ORDER IN EXERCISE OF SECURITIES
Mortgagee may exercise its security under this mortgage and any other
security for Secured Money in any order it wishes. The Mortgagor waives
any right of marshalling in relation to this mortgage or any other
security for Secured Money. Mortgagee is not under any obligation to
appropriate in favour of the Mortgagor or to exercise, apply or recover
any security for Secured Money or any fund or asset that Mortgagee may
be entitled to receive or have a claim upon.
<PAGE> 338
24
G0. RE-INSTATEMENT OF MORTGAGEE'S RIGHTS
If any claim that a payment, obligation, settlement, transaction,
conveyance or transfer in connection with Secured Money (or money which
would be Secured Money if the claim was invalid) is void or voidable
under any law relating to insolvency, bankruptcy or the protection of
creditors is upheld, conceded or compromised:
a0. Mortgagee is entitled immediately as against the Mortgagor to
the rights in respect of the Secured Money to which it would
have been entitled if all or part of that payment, obligation,
settlement, transaction, conveyance or transfer had not taken
place; and
b0. the Mortgagor agrees to immediately do any act or sign any
document at Mortgagee's request to restore Mortgagee to any
security or guarantee held by it from the Mortgagor
immediately before that payment, obligation, settlement,
transaction, conveyance or transfer.
XVI. FURTHER ASSURANCES
A0. PERFECTION OF SECURITY
The Mortgagor must immediately upon request by Mortgagee do acts,
obtain consents, pay fees and execute deeds and other documents deemed
necessary or desirable by Mortgagee:
a0. to perfect any mortgage or charge pursuant to this mortgage;
b0. to effect any mortgage or charge agreed to be given pursuant
to this mortgage;
c0. to enable the exercise of Mortgagee's rights and powers;
d0. to effect the security and priority intended by this mortgage
and Mortgagee;
e0. to more effectively secure the Mortgaged Property to
Mortgagee; and
f0. to give Mortgagee a legal mortgage over any property mortgaged
or charge d under this mortgage.
B0. MORTGAGOR'S SECURITY FROM DEBTOR
The Mortgagor agrees to hold any indemnity (together with any security
for that indemnity) from any Debtor in respect of its liability under
this mortgage in trust for Mortgagee.
<PAGE> 339
25
XVII. MORTGAGEE'S RIGHT TO ASSIGN
A0. ASSIGNMENT
Mortgagee may at any time assign or deal in any way with its interest
in Secured Money or its rights under this mortgage. Provided the
Mortgagor's aggregate liability is not thereby increased it must, at
the request and cost of Mortgagee, sign any deed or other document
reasonably required by Mortgagee pursuant to any such assignment or
dealing.
B0. DISCLOSURE OF INFORMATION
Mortgagee may without notice to the Mortgagor disclose information
relating to the Mortgagor, Security Provider, Associated Entity,
Debtor, a Guarantor, the Mortgaged Property or Secured Money to any
registry, body or other authority or to any person in connection with a
genuine proposal to assign any interest in Secured Money or this
mortgage.
XVIII. COSTS
A0. MORTGAGOR TO PAY ALL COSTS
The Mortgagor must pay to Mortgagee or as it may direct all costs and
expenses (including legal costs on a full indemnity basis incurred by
Mortgagee, any receiver or agent appointed by Mortgagee under a
Security and any officer of Mortgagee acting as attorney under this
mortgage or Security in connection with:
a0. the preparation, negotiation, stamping, registration
variation, discharge or release of this mortgage and any
agreement varying or relating to this mortgage and any
associated investigation, enquiries and searches;
b0. the recovery of the Secured Money;
c0. the assessment at any time after an Event of Default of the
Securities and Mortgagee's rights and duties;
d0. the exercise or attempted exercise of any power conferred on
Mortgagee (or any agent or attorney) pursuant to this mortgage
or by law or on any attorney pursuant to clause 14;
e0. any obligation Mortgagee has at any time to the Mortgagor
pursuant to any legislation, this mortgage or any transaction
contemplated by this mortgage;
f0. any application for Mortgagee's consent or approval in
connection with this mortgage and the issue or refusal of
consent or approval; and
g0. the assessment of the Mortgagor's position following the
occurrence of an Event of Default.
<PAGE> 340
26
B0. MORTGAGOR TO PAY STAMP DUTY AND OTHER DUTIES
The Mortgagor must pay all stamp, transaction, registration and similar
duties, imposts, taxes (including without limitation, financial
institutions duty and debts tax) and levies arising directly or
indirectly in relation to this mortgage, any variation or any
transaction contemplated or evidenced by this mortgage. The Mortgagor
must immediately reimburse Mortgagee any such duties, imposts, taxes
and levies paid by Mortgagee.
C0. PAYMENT OF MORTGAGEE'S ADMINISTRATION FEE
The Mortgagor agrees to pay Mortgagee upon demand a fee for the time
spent by employees of Mortgagee in:
a0. considering any application by the Debtor, Mortgagor or
Security Provider for any approval or consent required under
this mortgage;
b0. preparation of this mortgage or any other document between the
Mortgagor, Debtor or Security Provider and Mortgagee;
c0. exercising its rights and powers and taking any action to
recover the Secured Money following the occurrence of an Event
of Default.
The fee will be calculated by reference to the hourly rates recommended
by the Insolvency Practitioners Association of Australia from time to
time and Mortgagee's determination of the equivalent seniority levels
of its employees.
XIX. GENERAL
A0. SIGNING OF NOTICES BY MORTGAGEE
Any statement, demand, certificate or notice to the Mortgagor will be
effectively signed on behalf of Mortgagee if it is executed or signed
by Mortgagee, any director or secretary or employee of Mortgagee, or
any solicitor engaged by Mortgagee in connection with this mortgage.
B0. SERVICE OF DEMAND NOTICE
In addition to effecting service pursuant to any statute any statement,
demand or notice to any party may be validly served (notwithstanding
that the demand or notice is returned to Mortgagee for any reason) for
the purposes of this mortgage by being delivered or sent by certified
post to the address of the Mortgagor set out in item 1 or sent by telex
or facsimile to the telex or facsimile number of a machine situated at
the residence or place of business of any Mortgagor. Service will be
deemed to be valid service if made to the address, telex number or
facsimile number in item 1 unless the Mortgagor has notified Mortgagee
in writing of the change of the Mortgagor's address, telex and
facsimile number and Mortgagee has confirmed the change in writing.
Service pursuant to this clause is taken to be effected:
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27
a0. where delivered - upon actual delivery;
b0. where posted - 2 days after dispatch by Mortgagee;
c0. where sent by telex - upon receipt by the sender of the
answerback code of the addressee after transmission of the
telex; and
d0. where sent by facsimile, on production of a transmission
report by the machine from which the facsimile was sent which
indicates that the facsimile was sent in its entirety to the
facsimile number of the recipient,
except where actual delivery is made or the telex or facsimile is sent
after 5.00pm or on a day which is not a business day when service is
taken to be effected at 9.00am on the next following business day.
C0. MORTGAGOR'S STATEMENT OF MONEY OWING CONCLUSIVE EVIDENCE
Except in the case of manifest error, a written statement, certificate
or determination by Mortgagee setting out the amount of money owing or
any determination of an amount to be paid under this Mortgage or any
component part, shall be conclusive evidence of the amount owing or the
determination and will be binding on the Mortgagor.
D0. REGISTRATION AND REQUISITIONS
1. The Mortgagor must upon demand by Mortgagee procure registration of
this mortgage and any mortgage or encumbrance given pursuant to this
mortgage with the priority intended by Mortgagee. The Mortgagor must to
the satisfaction of Mortgagee promptly comply with any requisition
raised by any authority in connection with this mortgage its stamping
and registration.
2. Where the priority of this mortgage or any mortgage or encumbrance
given pursuant to this mortgage is changed or varied the Mortgagor must
upon demand by Mortgagee complete any documentation required by
Mortgagee to ensure registration of this mortgage or any mortgage or
encumbrance given pursuant to this mortgage with the priority intended
by Mortgagee.
E0. NO MORATORIUM
The provisions of any legislation postponing payment of money, reducing
or fixing rates of interest or purporting to curtail or restrict any
rights of Mortgagee are to the extent that it is lawful expressly
excluded from application to this mortgage.
F0. TIME OF THE ESSENCE FOR MORTGAGOR'S OBLIGATIONS
The Mortgagor agrees that time is of the essence in relation to the
performance of its obligations expressed in or implied by this
mortgage.
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28
G0. MORTGAGEE ' CONSENTS
1. Where Mortgagee's consent or approval is required pursuant to this
mortgage:
a0. unless otherwise expressed it may in Mortgagee's discretion
(and whether or not acting reasonably) be withheld or given
subject to terms or conditions; and
b0. it is not valid unless expressly given in writing by
Mortgagee.
2. Any consent given under this mortgage is not deemed to be consent in
the context of any other agreement. Nothing in this mortgage can
require Mortgagee to give its consent in the context of any other
agreement.
3. The Mortgagor must comply with the terms and conditions of any consent.
4. Mortgagee may engage consultants and advisers to advise it in relation
to any application for its approval or consent under this mortgage. The
costs of those consultants and advisers must be reimbursed by the
Mortgagor upon demand.
5. The Mortgagor agrees that Mortgagee (and Mortgagee's employees and
consultants) owes no duty of care to the Mortgagor in issuing any
consent or approval and that in determining whether to proceed with the
thing consented to or approved the Mortgagor must rely entirely on its
own judgment and the advice of its own employees and consultants.
H0. SURVIVAL OF PERSONAL COVENANTS AND AGREEMENTS
Any personal covenant or agreement by the Mortgagor to pay Secured
Money or any indemnity by the Mortgagor in favour of Mortgagee in this
mortgage remains in full force despite any release or discharge of the
whole or any part of the Mortgaged Property.
I0. SEVERABILITY OF PROVISIONS
Every provision of this mortgage is independent of the others. Any
provision which is prohibited or unenforceable in any jurisdiction is
to the extent of the prohibition or unenforceability deemed removed
without invalidating the remaining provisions.
J0. APPLICABLE LAW
Unless otherwise specified, this mortgage is governed by the law of the
state or territory nominated in item 3. The parties irrevocably and
unconditionally submit to the non-exclusive jurisdiction of the court
system of that place.
K0. MAXIMUM PROSPECTIVE LIABILITY
1. For the purposes of the priority rules in section 282 of the
Corporations Law this mortgage secures a prospective liability up to
the maximum amount specified in item 4 in addition to any present
liability.
<PAGE> 343
29
2. For so long as there is no other charge over any Mortgaged Property
registered subsequently to this mortgage, this mortgage also secures an
additional prospective liability of an unlimited amount.
3. Where there is another charge over any Mortgaged Property registered
subsequently to this mortgage, to the extent that the priority accorded
to this mortgage pursuant to section 282 of the Corporations Law and
clause 19.11.1 not adversely affected this mortgage also secures an
additional prospective liability of an unlimited amount.
L0. CONFLICT WITH TRANSACTION DOCUMENTS
In the event of any conflict or inconsistency between the terms of the
Lease and this deed then the terms of the Lease will prevail over the
relevant provision of this deed.
SCHEDULE TO MORTGAGE OF UNITS
(REFERENCE SCHEDULE)
ITEM 1: MORTGAGOR
Name: Moran Health Care Group Pty Limited
ACN: 008 585 242
Address: 13-15 Bridge Street, Sydney Australia
Facsimile no: 9247 9666
ITEM 2: MORTGAGEE'S ADDRESS
Address: c/- Phillips Fox, 255 Elizabeth Street, Sydney, New
South Wales (Attn WGC/RWT)
Facsimile no: 9283 4144
and to
Omega (UK) Ltd
Address: 145 Cannon Street, London EC4N 5BT
Fax No: 0011 44 171 929 3555
Attn: J Storey
and to
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30
Omega Worldwide Inc,
Address: 905 W Eisenhower Circle
Ann Arbor MI 48103
Fax No: 0011 1 313 996 0020
Attn: Essel Bailey
ITEM 3: JURISDICTION
New South Wales
ITEM 4: MAXIMUM PROSPECTIVE LIABILITY
$10,000,000.00
EXECUTED AS A DEED
The common seal of MORAN HEALTH CARE GROUP
PTY LIMITED is affixed in accordance
with its articles of association:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Signature of authorised person Signature of authorised person
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Office held Office held
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Name of authorised person (print) Name of authorised person (print)
<PAGE> 345
31
ANNEXURE A
(irrevocable direction)
<PAGE> 346
32
IRREVOCABLE DIRECTION
TO: THE PERSON(S) WHOSE NAME, ACN AND ADDRESS APPEARS IN ITEM 1 OF
THE SCHEDULE ("COMPANY")
FROM: THE PERSON(S) WHOSE NAME, ACN AND ADDRESS APPEARS IN ITEM 2 OF
THE SCHEDULE ("UNITHOLDER")
1 The Unitholder notifies you that it has mortgaged the units,
options and other rights described in item 3 of the schedule and
any other units, options and other rights now or in the future
held by it in the Company to Premier Care Australia Pty Limited
as trustee of the ALUT Trust.
2 The Unitholder directs the Company to forward any of the
following to Mortgagee at its
address set out above.
(a) any certificates or other documents of or evidencing title
in any of the units, options and other rights or otherwise
in the Company now or in the future registered in the name
of the Unitholder; and
(b) following an Event of Default all dividend and other
payment cheques arising in respect of those units, options
and other rights.
3 This direction is irrevocable until Mortgagee gives the Company
written notice that it is no longer to apply.
4 This notice and direction is given to you pursuant to a
requirement in the mortgage given by the Shareholder to Mortgagee
and Mortgagee is relying upon the Company's compliance with this
direction.
SCHEDULE
ITEM 1: COMPANY
Name: Moran Health Care (Australia) Pty Limited in its
own capacity and as trustee of the Moran Health
Care Australia Trust
ACN: 082 466 457
Address: 13-15 Bridge Street, Sydney, New South Wales
ITEM 2: UNITHOLDER
Name: Moran Health Care Group Pty Limited
ACN: 008 585 242
Address: 13-15 Bridge Street, Sydney, New South Wales
<PAGE> 347
33
ITEM 3: DESCRIPTION OF UNITS
100 Units
Dated: 1998
The common seal of MORAN HEALTH CARE GROUP PTY LIMITED is affixed in accordance
with its articles of association:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Signature of authorised person Signature of authorised person
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Office held Office held
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Name of authorised person (print) Name of authorised person (print)
<PAGE> 348
34
CONTENTS
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Interpretation 3
1.3 Joint and several 4
1.4 Successors and assigns 4
1.5 Headings and table of contents 4
1.6 References to and calculations of time 4
1.7 Corporate relationships 5
1.8 Defined terms from Lease 5
2. MORTGAGE 5
2.1 Absolute assignment 5
2.2 Title documents 5
2.3 Transfer forms 6
2.4 Redemption 6
3. PERFORMANCE OF MORTGAGOR' S OBLIGATIONS GENERALLY 6
3.1 Performance of all obligations 6
3.2 Mortgagee's right to remedy 6
4. PAYMENT OF SECURED MONEY 7
4.1 Time for payment 7
4.2 Payment following an Event of Default 7
4.3 Payment without deduction or set-off 7
4.4 Credit for payment 7
4.5 Application of payments 7
4.6 Place for payment of money 7
4.7 Set-off against other accounts 8
4.8 Overpayment 8
4.9 Payment in wrong currency 8
5. INTEREST AND FEES 8
5.1 Payment of interest 8
5.2 Calculation of interest and fees 9
6. UNDERTAKINGS RELATING TO THE MORTGAGED PROPERTY 9
6.1 Provision of notices relating to the Mortgaged Property 9
6.2 Voting 9
6.3 Distributions 9
7. NEGATIVE COVENANTS 10
7.1 Prohibition on dealing with the Mortgaged Property 10
<PAGE> 349
35
CONTENTS
7.2 Prohibition on set-off 10
7.3 Prohibition on acts prejudicial to Mortgagee's security 10
7.4 Prohibition on conversion of Mortgaged Property 10
7.5 Other prohibitions not to be affected 11
8. PROVISIONS APPLYING TO A TRUSTEE MORTGAGOR 11
8.1 Application of clause 8 11
8.2 Representations and warranties relating to the Trust 11
8.3 Specific prohibitions relating to the Trust 12
8.4 General obligations relating to the Trust 12
8.5 Trustee's right of indemnity 12
8.6 New trustees 12
8.7 Mortgagor's liability unlimited 12
9. WARRANTIES AND INDEMNITIES 13
9.1 Warranties 13
9.2 Indemnities 13
10. PROVISION OF INFORMATION AND ACCESS TO MORTGAGEE 15
10.1 Notification of matters to Mortgagee 15
11. EVENTS OF DEFAULT AND MORTGAGEE'S POWERS 15
11.1 Mortgagor to prevent Event of Default 15
11.2 Event of Default 15
11.3 Notification of Events of Default 17
11.4 No default certificate 17
11.5 Report by qualified accountant 17
12. MORTGAGEE'S POWERS FOLLOWING EVENT OF DEFAULT 18
12.1 Exercise of powers generally 18
12.2 Mortgagee's general powers 19
12.3 Exercise of powers by agent 20
13. PROVISIONS RELATING TO MORTGAGEE'S POWERS 20
13.1 Powers are in addition to statutory powers 20
13.2 Waiver of statutory notices 20
13.3 Protection of purchasers 21
13.4 Specific authority to exercise powers 21
13.5 Protection of Mortgagee 21
13.6 Money outlaid is secured 21
13.7 Entitlement to charge commissions 21
13.8 Mortgagee may give up possession of Mortgaged Property 21
14. POWER OF ATTORNEY 22
14.1 Mortgagee as Mortgagor's attorney 22
14.2 Conflicts of duty 22
14.3 Attorney's indemnity and costs 22
<PAGE> 350
36
CONTENTS
15. PRESERVATION OF MORTGAGEE'S RIGHTS 23
15.1 General preservation of rights 23
15.2 No merger 23
15.3 No suspension of payment obligation 24
15.4 Partnership Mortgagor 24
15.5 Mortgagor not to prove in competition or claim subrogation 24
15.6 No order in exercise of securities 24
15.7 Re-instatement of Mortgagee's rights 25
16. FURTHER ASSURANCES 25
16.1 Perfection of Security 25
16.2 Mortgagor's security from Debtor 25
17. MORTGAGEE'S RIGHT TO ASSIGN 26
17.1 Assignment 26
17.2 Disclosure of information 26
18. COSTS 26
18.1 Mortgagor to pay all costs 26
18.2 Mortgagor to pay stamp duty and other duties 27
18.3 Payment of Mortgagee's administration fee 27
19. GENERAL 27
19.1 Signing of notices by Mortgagee 27
19.2 Service of demand notice 27
19.3 Mortgagor's statement of money owing conclusive evidence 28
19.4 Registration and requisitions 28
19.5 No moratorium 28
19.6 Time of the essence for Mortgagor's obligations 29
19.7 Mortgagee ' consents 29
19.8 Survival of personal covenants and agreements 29
19.9 Severability of provisions 29
19.10 Applicable law 30
19.11 Maximum prospective liability 30
19.12 Conflict with Transaction Documents 30
SCHEDULE TO MORTGAGE OF UNITS 30
IRREVOCABLE DIRECTION 33
<PAGE> 351
BILL FACILITY AGREEMENT
DATE:
PREMIER CARE AUSTRALIA PTY LIMITED
Borrower
ABN AMRO AUSTRALIA LIMITED
Financier
(c) Copyright Clayton Utz
<PAGE> 352
BILL FACILITY AGREEMENT made at on 1998
BETWEEN PREMIER CARE AUSTRALIA PTY LIMITED, ACN 069 875 476 both in
its personal capacity and in its capacity as trustee of the
ALUT Trust ("BORROWER")
AND ABN AMRO AUSTRALIA LIMITED, ACN 000 862 797 ("FINANCIER")
OPERATIVE PROVISIONS:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement:
"AGENT" means ABN AMRO Australia Limited in its capacity as agent
under an Amended and Restated Syndicated Facilities Agreement dated
15 December 1995 (as amended on 14 March 1997 and as amended and
restated on 6 November 1997 and as further amended and restated on
or about the date of this Agreement) between Moran Health Care
Group Pty Limited, the persons specified therein as "Obligors", the
persons specified as "Financiers" and ABN AMRO Australia Limited.
"ALUT TRUST" means the trust constituted by the Trust Deed.
"BANKING DAY" means a day (other than a Saturday or Sunday) on
which trading banks are open for business generally in Sydney.
"BILLS" means two bills of exchange within the meaning given to the
expression "BILL OF EXCHANGE" in the Bills of Exchange Act (but not
a cheque or payment order):
(1) one of which (the "$35 MILLION BILL") has a
face value of $35,000,000, and the other of
which (the "$15 MILLION BILL") has a face
value of $15,000; and
(2) each of which matures on the Banking Day
immediately preceding the first anniversary
of the date of issue of the bill;
(3) which are completed so that:
(1) the Borrower is named as drawer on
each bill;
(ii) the Financier is named as acceptor; and
(iii) Premier Care Australia (Holdings) Pty
Limited is named as payee on the $35
Million Bill, and FAI General Insurance
Company Limited is named as payee on the
$15 Million Bill.
"BILLS OF EXCHANGE ACT" means the Bills of Exchange Act 1909
(Commonwealth).
1.
<PAGE> 353
"BORROWING" means any liability in respect of money borrowed or
raised (including rentals under finance leases) and interest
thereon; any liability under any bill of exchange, debenture, note
or security, or under any acceptance credit facility; any liability
in respect of the acquisition cost of assets or services to the
extent payable after the time of acquisition or possession thereof;
and any guarantee or other assurance against financial loss in
respect of any such money borrowed or raised, interest or
liabilities.
"BUSINESS" means the business conducted by the Borrower as at the
date of this Agreement and from time to time thereafter.
"CHARGE" has the same meaning as in the Debenture Stock Trust Deed.
"CONDITIONS PRECEDENT" means the conditions precedent referred to
in clauses 4.1 and 4.2.
"CONTROL" means:
(a) in respect of the Borrower - the possession directly or
indirectly of the power, whether or not having statutory,
legal or equitable force, and whether or not based on
statutory, legal or equitable rights or otherwise, directly
or indirectly to control the membership of the board of
directors of the Borrower or to otherwise directly or
indirectly direct or cause the direction of the management,
policies or activities of the Borrower whether by means of
trusts, agreements, arrangements, understandings, practices,
the ownership of any interest in shares or stock of the
Borrower or otherwise; and
(b) in respect of the ALUT Trust - the possession directly or
indirectly of the power, whether or not having statutory,
legal or equitable force, and whether or not based on
statutory, legal or equitable rights or otherwise, directly
or indirectly to control the ALUT Trust or to otherwise
directly or indirectly direct or cause the direction of the
management, policies or activities of the ALUT Trust whether
by means of trusts, agreements, arrangements,
understandings, practices, the ownership of any interest in
the ALUT Trust or otherwise.
"CONTROLLER" has the meaning given in section 9 of the Corporations
Law.
"DEBENTURE STOCK TRUST DEED" means the deed so entitled dated on or
about the date of this Agreement between the Borrower and the
Security Trustee.
"DEPOSIT" means a deposit of $15,000,000 (to be lodged as to
$5,000,000 by the Borrower and as to $10,000,000 by Omega Worldwide
Inc.) with ABN AMRO BANK N.V., Australian Branch, and which will
attract interest at the rate offered by ABN AMRO BANK N.V. to
persons holding 12 month deposits with ABN AMRO BANK N.V. with
interest to be paid quarterly in arrears to the Borrower.
"DOLLAR" or "$" means the lawful currency for the time being of the
Commonwealth of Australia.
2.
<PAGE> 354
"DRAWDOWN" means the acceptance of the Bills by the Financier under
the Facility.
"DRAWDOWN DATE" means the date on which a Drawdown is made or,
where the context requires, is proposed to be made.
"DRAWDOWN NOTICE" means a notice given under clause 3.1(a).
3.
<PAGE> 355
"ENCUMBRANCE" means any mortgage, charge, pledge, lien,
encumbrance, assignment hypothecation, security interest, title
retention, preferential right, trust arrangement, contractual right
of set-off or any other security agreement or arrangement in favour
of any person.
"EVENT OF DEFAULT" means any of the events referred to in clause
13.1 or 13.4.
"FAI DOCUMENTS" means:
(a) the Procurement Agreement; and
(b) the Redemption and Subscription Agreement.
"FACILITY" means the bill acceptance facility provided to the
Borrower by the Financier in accordance with this Agreement.
"FACILITY LIMIT" means $50,000,000 or any other amount as may be
agreed in writing between the Financier and the Borrower to the
extent that the Facility is not cancelled or permanently reduced
under this Agreement.
"FOREIGN CURRENCY" means the currency for the time being of any
country other than the Commonwealth of Australia.
"GUARANTEE AND INDEMNITY" means the Deed of Guarantee and Indemnity
dated on or about the date of this Agreement between Omega
Worldwide Inc. and the Security Trustee.
"HEDGING TRANSACTION" means a transaction which is used for
interest rate or currency hedging, including interest rate and
currency swaps, options, floors and forward rate agreements.
"INITIAL UNITHOLDERS" means Metlife Australia (Holdings) Pty
Limited, ACN 070 667 417 and FAI Deposit Co. Pty Limited, ACN 008
647 489.
"INSOLVENCY EVENT" means:
(a) a receiver, manager, receiver and manager, trustee,
administrator, Controller or similar officer is
appointed in respect of a person or any asset of a
person (and does not retire, or is not removed, within
3 Banking Days of such appointment);
(b) a liquidator or provisional liquidator is appointed in
respect of a corporation;
(c) any application (not being an application withdrawn,
stayed or dismissed within 10 days) is made to a court
for an order, or an order is made, or a meeting is
convened, or a resolution is passed, for the purpose
of:
(i) appointing a person referred to in paragraphs (a)
or (b);
(ii) winding up a corporation; or
(iii) proposing or implementing a scheme of
arrangement;
(d) a moratorium of any debts of a person, or an official
assignment, or a composition,
4.
<PAGE> 356
or an arrangement (formal or informal) with a person's
creditors, or any similar proceeding or arrangement by
which the assets of a person are subjected
conditionally or unconditionally to the control of that
person's creditors or a trustee, is ordered, declared,
or agreed to, or is applied for and the application
is not withdrawn, stayed or dismissed within 10 days;
(e) a person becomes, or admits in writing that it is, is
declared to be, or is deemed under any applicable law
to be, insolvent or unable to pay its debts; or
(f) any writ of execution, garnishee order, mareva
injunction or similar order, attachment, distress or
other process is made, levied or issued against or in
relation to any asset of a person for any amount
exceeding $100,000.
"INSOLVENCY PROVISION" means any law relating to insolvency,
sequestration, liquidation or bankruptcy (including any law
relating to the avoidance of conveyances in fraud of creditors or
of preferences and any law under which a liquidator or trustee in
bankruptcy may set aside or avoid transactions) and any provision
of any agreement, arrangement or scheme, formal or informal,
relating to the administration of any of the assets of any person.
"LEASE" means any lease or licence of any Property granted by the
Borrower in favour of Moran Health Care (Australia) Pty Limited.
"LEASE GUARANTEE" means the deed entitled "Lease Guarantee" dated
on or about the date of this Agreement between Moran Health Care
Group Pty. Limited and the Borrower.
"MORAN DOCUMENTS" means:
(a) the Lease;
(b) the Lease Guarantee;
(c) the Relationship Agreement;
(d) the Fixed and Floating Charge dated on or about the
date of this Agreement between the borrower and Moran
Health Care (Australia) Pty Limited as trustee of the
Moran Health Care Australia Trust;
(e) the Mortgage of Units dated on or about the date of
this Agreement between the Borrower and Moran Health
Care Group Pty Limited; and
(f) the Mortgage of Shares dated on or about the date of
this Agreement between the Borrower and Moran Health
Care Group Pty Limited.
"MORTGAGE OF DEPOSIT (PREMIER CARE)" means the mortgage so entitled
dated on or about the date of this Agreement between the Borrower
and the Security Trustee.
"MORTGAGE OF DEPOSIT (OWI)" means the mortgage so entitled dated on
or about the date of this Agreement between Omega Worldwide Inc.
and the Security Trustee.
"MORTGAGES" means the mortgages over the Properties granted by the
Borrower to the Security Trustee on or about the date of this
Agreement.
"OBLIGATIONS" means all the liabilities of the Borrower to the
Financier under or by reason of:
5.
<PAGE> 357
(a) any Transaction Document to which the Borrower is a party; or
(b) any other transaction, matter or event,
and includes any liabilities which:
(c) are unliquidated;
(d) are present, prospective or contingent;
(e) are in existence before or come into existence after the date
of this Agreement;
(f) relate to the payment of money or the performance or omission
of any act;
(g) sound in damages only; or
(h) accrue as a result of any Event of Default.
"ORIGINAL SECURITIES" means:
(a) the Debenture Stock Trust Deed;
(b) the Charge;
(c) the Mortgages;
(d) the Mortgage of Deposit (Premier Care); and
(e) the Mortgage of Deposit (OWI).
"POTENTIAL EVENT OF DEFAULT" means any event which, with the giving
of notice, lapse of time, or any determination, might constitute an
Event of Default.
"PROCUREMENT AGREEMENT" means the agreement so entitled dated on or
about the date of this Agreement between Moran Health Care
(Australia) Pty Limited, FAI Insurances Limited and Moran Health
Care Group Pty Limited.
"PROJECT" means the leasing of the Properties by the Borrower to
Moran Health Care (Australia) Pty Limited.
"PROPERTIES" means each property listed in the Schedule.
"REDEMPTION AMOUNT" means the amount payable by the Borrower to the
Initial Unitholders upon redemption of all the units held by the
Initial Unitholders in the ALUT Trust.
"REDEMPTION AND SUBSCRIPTION AGREEMENT" means the agreement so
entitled dated on or about the date of this Agreement between the
Borrower, Premier Care Australia (Holdings) Pty Limited, FAI
Insurances Limited, PHF No. 1 Pty Limited and Tanoa Pty Limited.
"REGISTER" has the same meaning as in the Debenture Stock Trust
Deed.
"RELATED BODY CORPORATE" has the meaning given in section 9 of the
Corporations Law, but on the basis that "SUBSIDIARY" for the
purposes of that definition has the meaning given in
6.
<PAGE> 358
this Agreement.
"RELATIONSHIP AGREEMENT" means the agreement so entitled between
the Borrower and various other parties dated on or about the date
of this Agreement.
"REVIEW EVENT" means any event referred to in clause 13.3.
"SECURITIES" means the Original Securities plus any other security
held by the Financier at any time for the due performance,
observance and fulfilment of the Obligations, and "SECURITY" means
each or any one of them as the context requires.
"SECURITY PROPERTY" means any property subject to a Security.
"SECURITY TRUSTEE" means ABN AMRO Facilities Australia Limited.
"SPECIFIED RATE" means on any date the aggregate of 2% and the
average of the buy rates for bills of exchange which have a tenor
of 30 days which rates are displayed on the page of the Reuters
Monitor System designated "BBSY" at or around 10.30 am (Sydney
time) on the relevant date or, if those rates are not displayed at
that time on that date, the rate specified in good faith by the
Financier at or around that time on that date having regard, to the
extent possible, to the rate at which the Financier would be
prepared to purchase bills accepted by itself of that tenor at or
around that time.
"STOCK" and "STOCK CERTIFICATE" each have the same meaning as in
the Debenture Stock Trust Deed.
"SUBSIDIARY" in relation to any person, has the meaning given in
the Corporations Law but so that:
(4) an entity will also be deemed to be a
Subsidiary of a company if it is controlled
by that company (expressions used in this
paragraph have the meanings given for the
purposes of parts 3.6 and 3.7 of the
Corporations Law);
(5) a trust may be a Subsidiary, for the
purposes of which any units or other
beneficial interests will be deemed shares;
and
(6) a corporation or trust may be a Subsidiary
of a trust if it would have been a
Subsidiary if that trust were a
corporation.
"TAXES" mean all present and future income, stamp and other taxes,
levies, imposts, deductions, charges and withholdings plus interest
thereon and penalties, if any, and charges, fees or other amounts
in respect of any of them, except if imposed on the overall net
income of the Financier.
"TERMINATION DATE" means the earlier of:
(7) the day of maturity of the Bills; and
(8) such earlier date on which the Facility is
terminated or cancelled by the Financier in
accordance with this Agreement.
7.
<PAGE> 359
"TRANSACTION DOCUMENTS" means:
(9) this Agreement;
(10) the Tripartite Agreement;
(11) each Security;
(12) the Guarantee and Indemnity; and
(13) each other document to which the Borrower
and the Financier are parties at any time
that:
(1) relates to any money that is
declared by that document to be part
of the Obligations; or
(2) is expressed to be, or is agreed by
the said parties to be, a
Transaction Document for the
purposes of this Agreement,
and any document which is, or which is expressed to be, collateral
or supplemental to any other document that is then a Transaction
Document.
"TRIPARTITE AGREEMENT" means the agreement so entitled dated on or
about the date of this Agreement between the Financier, the
Borrower and the persons who subscribe for units in the ALUT Trust
contemporaneously with the redemption of the units held by the
Initial Unitholders in the ALUT Trust.
"TRUST DEED" means the deed of trust dated 11 August 1995 between
the Borrower and the Initial Unitholders.
"UNITHOLDERS" means the unitholders of the ALUT Trust from time to
time.
1.2 Interpretation
In this Agreement:
(1) headings are for convenience only and do not
affect interpretation; and
unless the context indicates a contrary intention:
(2) the expression "PERSON" includes an individual,
the estate of an individual, a body politic, a
corporation and a statutory or other authority
or association (incorporated or
unincorporated);
(3) a reference to any party includes that party's
executors, administrators, successors,
substitutes and assigns, including any person
taking by way of novation and in the case of a
trustee includes any substituted or additional
trustee;
8.
<PAGE> 360
(4) a reference to any Transaction Document
however described or to any other document
includes the Transaction Document or other
document as amended, varied, novated,
supplemented, ratified or replaced from
time to time;
(5) a reference to any legislation or to any
section or provision thereof includes any
statutory modification, re-write or
re-enactment or any statutory provision
substituted therefor and all ordinances,
by-laws, regulations and other statutory
documents issued thereunder;
(6) words importing the singular include the
plural (and vice versa) and words denoting
a given gender include all other genders;
(7) a reference to a clause is a reference to a
clause of this Agreement;
(8) where any word or phrase is given a defined
meaning, any other part of speech or
grammatical form in respect of such word or
phrase has a corresponding meaning;
(9) where the day on or by which any sum is
payable or any act, matter or thing is to
be done is a day other than a Banking Day,
that sum will be paid and that act, matter
or thing will be done on the immediately
preceding Banking Day;
(10) all accounting terms used have the meaning
given under accounting principles and
practices generally accepted in Australia
from time to time;
(11) any agreement, undertaking,
acknowledgement, condition or other term
that is made or given by the Borrower will
be deemed to be a covenant by the Borrower
in favour and for the benefit of the
Financier;
(l2) any reference to the drawing, acceptance,
indorsement or other dealing of or with a
Bill refers to a drawing, acceptance,
indorsement or other dealing within the
meaning of the Bills of Exchange Act;
(13) mentioning anything after "include",
"includes" or "including" does not limit
what else may be included; and
(14) the Borrower and the Financier acknowledge
that this Agreement is a "Transaction
Document" as defined in and for the
purposes of the Debenture Stock Trust Deed.
2. THE FACILITY
2.1 Commitment
9.
<PAGE> 361
The Financier agrees to accept the Bills under the Facility subject
to the terms of this Agreement and in reliance on the
representations and warranties contained in it.
2.2 Purpose
The Borrower may only use the Facility towards payment of the
Redemption Amount to the Initial Unitholders.
2.3 Termination
The Facility terminates on the Termination Date.
3. DRAWDOWN
3.1 Notice
(1) The Borrower may draw down the Facility on
a Banking Day by giving written notice of
its intention to do so to the Financier
together with the Bills prepared (by the
Borrower) in accordance with clause 3.4.
(2) Only one Drawdown may be made under the
Facility.
3.2 Contents of Drawdown Notice
The Drawdown Notice must specify:
(1) the proposed Drawdown Date (which must be a
Banking Day); and
(2) any other details the Financier reasonably
requires.
3.3 Requirements of Drawdown Notice
The Drawdown Notice must:
(1) be received by the Financier 2 clear
Banking Days before the proposed Drawdown
Date or at such other time as the Borrower
and Financier agree;
(2) be signed by a person duly authorised by
the Borrower to do so;
(3) be irrevocable; and
(4) not be given if the Drawdown requested
would cause the Facility Limit to be
exceeded or otherwise would not comply with
any term of this Agreement.
3.4 The Bills
10.
<PAGE> 362
The Bills will be in a form acceptable to the Financier and each
will be:
(1) drawn by the Borrower and signed by a
person authorised to sign the Bills on
behalf of the Borrower; and
(2) expressed to be accepted and payable at
Sydney.
3.5 Acceptance
On the Drawdown Date the Financier will (subject to the provisions
of this Agreement) accept each Bill.
4. CONDITIONS PRECEDENT
4.1 Conditions Precedent
The obligation of the Financier to accept the Bills is subject to
the condition that it has first received all of the following in
form and substance satisfactory to it:
(1) (MEMORANDUM AND ARTICLES): a certified copy
of the Memorandum and Articles of
Association of the Borrower;
(2) (TRUST DEED): a certified copy of the Trust
Deed;
(3) (CORPORATE AUTHORISATION): a certified copy
of a resolution of the directors of the
Borrower approving the Facility and
authorising:
(1) the execution by the Borrower of this
Agreement and of any of the Original
Securities to be given by the
Borrower; and
(2) a person or persons to sign the
Bills, and notices, certificates or
other documents in connection with
the Facility on behalf of the
Borrower;
(4) (POWERS OF ATTORNEY): an original execution
copy or a certified copy of any power of
attorney pursuant to which any Transaction
Document is to be executed by the Borrower
or any of its Related Bodies Corporate;
(5) (SIGNATORIES): a certified copy of the
signatures of all persons authorised to
sign on behalf of the Borrower;
(6) (ORIGINAL SECURITIES): this Agreement, the
Guarantee and Indemnity and each Original
Security executed, stamped and (where
applicable) in registrable form (which the
Financier will provide to the Security
Trustee after Drawdown has occurred);
11.
<PAGE> 363
(7) (CERTIFICATES OF TITLE): certificates of
title for each of the Properties (and such
other documentation, including discharges
of Encumbrances if applicable, as may be
necessary to procure the registration of
the Mortgages as first ranking mortgages at
the New South Wales Land Titles Office)
(which the Financier will provide to the
Security Trustee after Drawdown has
occurred);
(8) (DISCHARGE OF PRIOR CHARGES): evidence that
the Encumbrances granted by the Borrower in
favour of HongkongBank of Australia Limited
(ASC Charge No. 509261) and Sovereign
Assurance Holdings Limited (ASC Charge No.
534143) have been discharged in full;
(9) (FORMS 309 AND 350): duly completed
Corporations Law Forms 309 and 350 in
respect of the Charge;
(10) (SPECIFICATION OF PROPERTIES): a
specification detailing each Property to
such an extent as the Financier may
reasonably require;
12.
<PAGE> 364
(11) (MORAN DOCUMENTS): a certified copy of each
Moran Document (on terms approved by the
Financier) executed by all parties thereto;
(l2) (FAI DOCUMENTS): a certified copy of each
FAI Document (on terms approved by the
Financier) executed by all parties thereto;
(13) (PAYMENT OF FEES): payment in full of the
fees referred to in clauses 8.1 and 8.2;
(14) (DEPOSIT): the Deposit has been established
with ABN AMRO BANK N.V. Australian Branch
(and ABN AMRO BANK N.V. having received all
documentation required by it in respect of
the Deposit);
(15) (OMEGA LETTER): a letter from Omega
Worldwide Inc. confirming that the group of
companies of which it forms part will, upon
the redemption and subscription of the
units in the ALUT Trust contemplated by the
Redemption and Subscription Agreement being
completed, own and control 100% of the
beneficial interest in the ALUT Trust;
(16) (REQUISITIONS): replies to all requisitions
of the Financier and its solicitors
relating to the Facility, the Properties or
the Original Securities;
(17) (LEGAL OPINION): an opinion addressed to
the Financier from its solicitors, Clayton
Utz, as to such matters relating to the
Transaction Documents as the Financier may
require;
(18) (ISSUE OF STOCK): a Stock Certificate
issued in favour of the Financier and
evidence that the Financier has been
entered in the Register as the holder of
Stock; and
(19) (FIRB APPROVAL): evidence that any
authorisation required under the Foreign
Acquisitions and Takeovers Act 1975 (Cth)
in respect of the transaction the subject
of the Redemption and Subscription
Agreement (including an authorisation
arising as a result of the expiry of a
period of time after notification to the
Foreign Investment Review Board) has been
granted.
4.2 Further Conditions Precedent
The obligation of the Financier to accept the Bills is subject to
the further conditions precedent that:
(1) (REPRESENTATIONS AND WARRANTIES TRUE): the
representations and warranties set out in
this Agreement are true and correct as of
the
13.
<PAGE> 365
date of the Drawdown Notice and the
Drawdown Date as though made at that date;
and
14.
<PAGE> 366
(2) (NO EVENT OF DEFAULT): no Event of Default
or Potential Event of Default is subsisting
at the date of the relevant Drawdown Notice
and the Drawdown Date or may result from
the provision of the Drawdown.
4.3 Certification
For the purposes of this clause, "CERTIFIED" means a copy certified
to be such by a director, secretary or general manager of the
Borrower.
5. INDEMNITY AND CASH COVER
(1) The Borrower indemnifies the Financier and
will keep the Financier indemnified in
respect of all liabilities of the Financier
and all losses suffered by the Financier
arising from the Financier accepting a Bill
in accordance with this Agreement.
(2) As security for the indemnity contained in
paragraph (a) the Borrower will provide the
Financier with full cash cover for each
Bill by 11.00 am on the Termination Date,
by paying to the Financier in immediately
available funds an amount equal to the
aggregate face value of both Bills.
(3) As between the Financier and the Borrower,
the Borrower will be primarily liable in
respect of the Bills and the liability of
the Borrower will not be taken to have been
discharged by reason of the Financier
becoming the holder of a Bill before, on or
after its maturity.
1. REPAYMENT
The Borrower will provide the Financier with full cash cover for
the aggregate face value of all Bills on the Termination Date. The
Borrower will also pay to the Financier all money the payment or
repayment of which forms part of the Obligations and which is
notified to the Borrower no later than 5 Banking Days prior to the
Termination Date.
6. INTEREST ON OVERDUE AMOUNTS
6.1 Payment of interest
The Borrower will pay interest on all amounts due and payable by it
under or in respect of this Agreement or the Securities and unpaid,
including interest payable under this clause 7.
6.2 Accrual of interest
Interest will accrue on all amounts due and payable from day to day
from the due date up
15.
<PAGE> 367
to the date of actual payment, before and (as a separate and
independent obligation) after judgment, at the Specified Rate for
successive 30 day periods commencing on the date of default and if
not paid when due, will itself bear interest in accordance with
this clause.
7. FEES
7.1 Acceptance Fee
The Borrower will pay to the Financier immediately prior to the
Financier accepting the Bills in accordance with this Agreement an
acceptance fee equal to 1.13% per annum of the aggregate face value
of both Bills.
7.2 Establishment Fee
The Borrower must pay to the Financier an establishment fee of
$125,000 in respect of the Facility upon the Borrower's execution
of this Agreement.
7.3 Fees Non-refundable
Each fee referred to in clauses 8.1 or 8.2 is not refundable to the
Borrower in any circumstances.
8. PAYMENTS
8.1 Time and place
Unless expressly provide otherwise in writing, all payments by the
Borrower under any Transaction Document are to be made to the
Financier in Dollars in immediately available funds not later than
11.00 am local time on the due date to the account the Financier
from time to time designates, or as otherwise agreed between the
Borrower and the Financier.
8.2 No Deduction for Taxes and no set-off or counterclaim
All payments by the Borrower under any Transaction Document,
whether of principal, interest or other amounts due under that
document, will be:
(1) free of any set-off or counterclaim; and
(2) without deduction or withholding for any
present or future Taxes unless the Borrower
is compelled by law to deduct or withhold
the same, in which event the Borrower will
pay to the Financier any additional amounts
necessary to enable the Financier to
receive, after all deductions and
withholding for Taxes, a net amount equal
to the full amount which would otherwise
have been payable had no such deduction or
withholding been required to be made.
8.3 Merger
16.
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If the liability of the Borrower to pay to the Financier any money
the payment or repayment of which forms part of the Obligations
becomes merged in any judgment or order, the Borrower as an
independent obligation will pay interest at the rate which is the
higher of that payable under this Agreement and that fixed by or
payable under the judgment or order.
8.4 Conversion of Foreign Currency receipts to Dollars
(1) Notwithstanding the obligation under clause
9.1 of the Borrower to make all payments in
Dollars, if any payment is tendered to the
Financier under any Transaction Document in
a Foreign Currency the Financier at its
absolute discretion may accept payment in
the Foreign Currency as tendered.
(2) If any payment in a Foreign Currency is
tendered to and accepted by the Financier,
or any funds are recovered by the Financier
under any Transaction Document in a Foreign
Currency, the Financier at its absolute
discretion may actually or notionally
convert such payment or funds to Dollars at
such time or times as it sees fit and at
such rate or rates as it is, or considers
it would be, able to obtain in the market
at the time of such conversion. The amount
of Dollars actually or notionally received
after the conversion will be applied in
reduction of the Obligations.
8.5 Costs of conversion
The Borrower will pay all commissions and expenses involved in
actually or notionally converting any payment or receipt in a
Foreign Currency into Dollars to the Financier.
8.6 Foreign Currency indemnity
If Foreign Currency is received by the Financier as a result of a
court or tribunal order or as a result of a distribution under an
Insolvency Provision, then as a separate, additional and continuing
liability (notwithstanding the order or distribution), the Borrower
will pay to the Financier any deficiency in the amount of Dollars
actually received by the Financier resulting from any variation
between:
(1) the rate of exchange at which the amount of
Foreign Currency was calculated for the
purposes of the court or tribunal order or
the distribution; and
(2) the rate of exchange at which the Financier
is able to purchase Dollars with the amount
of Foreign Currency actually received by
the Financier.
9. ILLEGALITY AND INCREASED COSTS
9.1 Illegality
17.
<PAGE> 369
If any change in applicable law, regulation, treaty or official
directive or in the interpretation or administration thereof by any
governmental authority charged with their administration makes it
unlawful or impossible for the Financier to maintain or give effect
to its obligations under this Agreement, the Financier may give a
notice to the Borrower appointing a date, which will be not less
than 45 days from the date of the notice, as the Termination Date.
The Financier agrees to use its reasonable endeavours, during the
period of 45 days referred to above, to make the financial
accommodation provided under this Agreement available by some
alternative means to avoid the illegality (including changing its
lending office to another existing lending office or making the
financial accommodation available through a Related Body Corporate
of the Financier).
9.2 Increased cost
(1) If because of any change in law or in its
interpretation or administration or because
of compliance with any request from or
requirement of any fiscal, monetary or
other authority:
(1) the Financier incurs a cost as
a result of its having entered
into or performed its
obligations under the Facility
or as a result of its
acceptance of a Bill or a Bill
being outstanding under this
Agreement;
(2) there is any increase in the
cost to the Financier of
funding or maintaining the
Facility;
(3) the amount of principal or
interest or any other amount
payable to the Financier or
the effective return to the
Financier under this Agreement
is reduced; or
(4) the Financier becomes liable
to make any payment (not being
a payment of Tax on its
overall net income) on or
calculated by reference to the
amount of the Drawdown or a
Bill,
then from time to time on notification by the Financier
the Borrower will pay to the Financier amounts
sufficient to indemnify the Financier against that
cost, increased cost, reduction or liability.
(2) If the Financier has acted in good faith it
is no defence that the cost, increased
cost, reduction or liability could have
been avoided. At the request of the
Borrower however, the Financier will
negotiate in good faith with the Borrower
to minimise the cost, increased cost,
reduction or liability.
(3) The Financier's certificate as to the
amount of, and basis for arriving at, any
cost, increased cost, reduction or
liability is conclusive and binding on the
Borrower in the absence of manifest error
on the face of the certificate.
18.
<PAGE> 370
(4) If a demand for additional amounts is made
under this clause 10.2 then the Financier
agrees to use reasonable endeavour for a
period of 45 days to either:
(1) make the relevant financial
accommodation available by
alternative means (including
comments about limitation,
changing its lending office to
another existing lending
office or making the financial
accommodation available
through a Related Body
Corporate of the Financier) so
the increase in cost or the
circumstance referred to in
clause 10.2(a) no longer
applies and that no other
additional expense arises as a
result of using the
alternative means; or
(2) assist the Borrower to find
another financial institution
to assume responsibility for
the Financier's obligations
under this agreement on that
basis that the increase in
cost or the circumstances
referred to in clause 10.2(a)
that applies to the Financier
does not apply to the
substitute.
10. REPRESENTATIONS AND WARRANTIES
10.1 General representations and warranties
The Borrower represents and warrants to the Financier that:
(1) (LEGALLY BINDING OBLIGATION): each
Transaction Document to which the Borrower
is a party constitutes a valid and legally
binding obligation of the Borrower in
accordance with its terms;
(2) (EXECUTION, DELIVERY AND PERFORMANCE): the
execution, delivery and performance of each
Transaction Document to which the Borrower
is a party does not violate any existing
law or regulation or any document or
agreement to which the Borrower is a party
or which is binding on it or any of its
assets;
(3) (AUTHORISATION): all consents, licences,
approvals and authorisations of every
government authority required to be
obtained by the Borrower in connection with
the execution, delivery and performance of
each Transaction Document to which it is a
party have been obtained and are valid and
subsisting;
(4) (INFORMATION): all information relating to
the Borrower provided to the Financier in
connection with the Facility and each
Transaction Document is true in all
material respects and is not, by omission
or otherwise, misleading in any material
respect;
(5) (NO MATERIAL ADVERSE EFFECT): no
litigation, arbitration, criminal or
administrative proceedings are current,
pending or, to the knowledge
19.
<PAGE> 371
\
of the Borrower, threatened which if
adversely determined would or could have a
material adverse effect on the business
assets or financial condition of the
Borrower;
(6) (NO EVENT OF DEFAULT): no event has
occurred which constitutes an Event of
Default or a Potential Event of Default;
(7) (LAWS): the Borrower has not failed to
comply with any statute or regulation
relative to it and the business carried on
by it where such failure may have a
material adverse effect on the Borrower's
ability to observe its obligations under
the Transaction Documents to which the
Borrower is a party;
(8) (BORROWINGS): the Borrower is not in
default in the payment of any material sum,
or in the performance or observance of any
material obligation in respect of any
Borrowing, and no event has occurred which
with the giving of notice, lapse of time or
other condition could constitute a material
default in respect of any Borrowing;
(9) (NO TRUSTS): the Borrower is not the
trustee of any trust (other than the ALUT
Trust) and does not hold any property
subject to or impressed by any trust (other
than the ALUT Trust); and
(10) (NO GUARANTEES): (except as provided in the
Transaction Documents or as required in the
ordinary course of the Business) there are
no bonds, guarantees or indemnities
currently binding on the Borrower nor has
the Borrower entered into any obligation to
provide any bond, guarantee or indemnity.
10.2 Corporate representations and warranties
The Borrower represents and warrants to the Financier that:
(1) (DUE INCORPORATION): the Borrower is duly
incorporated and has the corporate power to
own its own property and to carry on its
business;
(2) (MEMORANDUM AND ARTICLES): the execution,
delivery and performance of each
Transaction Document to which the Borrower
is a party does not violate the Memorandum
and Articles of Association of the
Borrower;
(3) (CORPORATE POWER): the Borrower has the
power, and has taken all corporate and
other action required, to enter into any
Transaction Document to which it is a party
and to authorise the execution and delivery
thereof and the performance of its
obligations thereunder; and
20.
<PAGE> 372
(4) (FILINGS): the Borrower has filed all
corporate notices and effected all
registrations with the Australian
Securities Commission or similar office in
its jurisdiction of incorporation and in
any other jurisdiction as required by law
and all such filings and registrations are
current, complete and accurate.
10.3 Trust representations and warranties
The Borrower represents and warrants to the Financier that:
(1) (TRUSTEE): it enters, or has entered, into
the Transaction Documents to which it is a
party in its capacity as trustee of the
ALUT Trust;
(2) (TRUST VALIDLY CREATED): the ALUT Trust has
been validly created and is in existence at
the date of this Agreement;
(3) (SOLE TRUSTEE): it has been validly
appointed as trustee of the ALUT Trust and
is presently the sole trustee of the ALUT
Trust;
(4) (TRUST DEED): the ALUT Trust is solely
constituted by the Trust Deed, (a true copy
of which was provided to the Financier or
its agent prior to the date of this
Agreement) and the Trust Deed discloses all
the terms of the ALUT Trust other than
terms implied by law;
(5) (TRUSTEE'S POWER): it has full and free
power to enter into the Transaction
Documents to which it is a party in its
capacity as trustee of the ALUT Trust;
21.
<PAGE> 373
(6) (TRUST AUTHORISATIONS): it has in full
force and effect all authorisations
necessary to enter into the Transaction
Documents as trustee of the ALUT Trust, and
to perform its obligations under them;
(7) (NO REMOVAL OF TRUSTEE): no action has been
taken or is proposed to remove it as
trustee of the ALUT Trust;
(8) (NO DEFAULT OF TRUSTEE): it is not in
default under the Trust Deed which would
have the effect of limiting or removing its
right of indemnity from the property of the
ALUT Trust, or would affect its power or
ability to enter into the Transaction
Documents to which it is a party (or to
perform its obligations under the
Transaction Documents to which it is a
party) as trustee of the ALUT Trust;
(9) (TRUST OBLIGATIONS): it and its directors
and other officers have complied with their
obligations in connection with the ALUT
Trust;
(10) (VESTING DATE NOT DECLARED): a date has not
been declared pursuant to the Trust Deed as
the date on which the ALUT Trust will be
vested or come to an end, and no other
action has been taken or is proposed to
terminate the ALUT Trust;
(11) (NO PROCEEDINGS): no proceedings of any
description have been or are likely to be
commenced or threatened which could have a
material adverse effect on the assets or
financial position of the ALUT Trust or on
its trusteeship thereof;
(l2) (NO ACQUISITION OF TRUST ASSETS): it has
not done, or failed to do, any act whereby
any of the assets of the ALUT Trust have
been acquired by any other person and no
assets of the ALUT Trust are presently
registered in the name of any other person
and no person, other than the Trustee and
the beneficiaries of the ALUT Trust from
time to time, has acquired any right of any
kind whether vested or contingent in any
asset of the ALUT Trust;
(13) (INDEMNITY): it has a right to be fully
indemnified out of the property of the ALUT
Trust in respect of obligations incurred by
it under the Transaction Documents to which
it is a party;
(14) (COMMERCIAL BENEFIT): it is to the
commercial benefit of the ALUT Trust that
it enters into the Transaction Documents to
which it is a party in its capacity, inter
alia, as trustee of the ALUT Trust and
encumbers the property of the ALUT Trust as
provided in the Original Securities; and
(15) (RANKING): the Financier's and the Security
Trustee's rights under the Securities rank
(in relation to the Security Property only)
in priority
22.
<PAGE> 374
to the interests of the beneficiaries of
the ALUT Trust.
10.4 Representations and warranties repeated
Each representation and warranty contained in clauses 11.1, 11.2
and 11.3 will be repeated on each day whilst any money the payment
or repayment of which forms part of the Obligations remain
outstanding (whether or not then due for payment) or the Facility
is available for drawdown, with reference to the facts and
circumstances then subsisting, as if made on each such day.
10.5 No representation by Financier
The Borrower acknowledges that it has not entered into this
Agreement or any other Transaction Document to which it is a party
as a result of any representation, promise, statement or inducement
to it by or on behalf of the Financier or any other person.
11. UNDERTAKINGS
11.1 General undertakings
For as long as any amount is outstanding under the Facility or the
Facility is available for drawdown, the Borrower undertakes to the
Financier that it will:
(1) (PERFORM OBLIGATIONS): perform, fulfil and
observe the Obligations;
(2) (MAINTAIN ALL CONSENTS): obtain, renew,
maintain and comply with all consents,
licences, approvals and authorisations
reasonably necessary for the validity and
enforceability of the Transaction Documents
to which it is a party, the performance of
its obligations hereunder and thereunder,
and the effectiveness of each Security as a
security with the stated priority; and it
will promptly provide copies of these to
the Financier when these are obtained or
renewed;
(3) (COMPLY WITH STATUTE): comply with all
statutes and all lawful requirements of
every government authority which relate to
the Project or the Business;
(4) (PROPER BOOKS OF ACCOUNT): keep or cause to
be kept proper books of account, in which
it will make true entries of all dealings
and transactions now or in the future
conducted by it, including, in respect of
its business, that it will keep the books
of account, vouchers and all other
documents relating to its affairs and its
business at its registered office or other
place where those books of account,
vouchers and documents of a similar nature
have previously been kept, and will ensure
that they are available at all reasonable
times following an Event of Default for
inspection and copying by the Financier or
any employee, agent or professional adviser
of the Financier that the Financier
appoints;
23.
<PAGE> 375
(5) (AUDIT): unless otherwise directed by the
Financier, cause its books of account and
the books of account of the ALUT Trust to
be duly audited by a registered company
auditor at least once in every year;
(6) (FINANCIAL INFORMATION): furnish to the
Financier:
(1) as soon as practicable and in any
event not later than 120 days after
the close of each of its financial
years, a copy of its (consolidated,
if applicable) and the ALUT Trust's
audited balance sheet and trading
and profit and loss account for
that financial year certified as
correct by a registered company
auditor;
(2) as soon as practicable and in any
event not later than 60 days after
each of its half-financial years, a
copy of its and the ALUT Trust's
unaudited semi-annual management
accounts for such period; and
(3) promptly, any further information
regarding its and the ALUT Trust's
financial condition and business
operations (or regarding any
proposal to which the Financier has
been requested to consent under
this Agreement) as the Financier
from time to time reasonably
requires;
(7) (COMPLIANCE WITH ACCOUNTING STANDARDS):
ensure that each balance sheet and trading
and profit and loss account furnished to
the Financier is prepared in accordance
with its Articles of Association, the
Corporations Law, any other applicable
legislation and all accounting principles
and practices generally accepted in
Australia consistently applied, or if not
consistently applied, accompanied by
details of the inconsistencies, and will
give a true and fair view of its financial
condition and the result of its operations
as at the date, and for the period ending
on the date, to which those accounts are
prepared;
(8) (CONSOLIDATED AND UNCONSOLIDATED ACCOUNTS):
ensure that if any balance sheet and
trading and profit and loss account
furnished under this Agreement discloses
the consolidated financial condition and
results of the operations of more than one
corporation, it is accompanied by an
unaudited unconsolidated balance sheet and
trading and profit and loss account that
complies with all other requirements in
this Agreement in relation to balance
sheets and trading and profit and loss
accounts for each corporation;
(9) (CERTIFICATE OF DEFAULT): as and when
required by the Financier, furnish the
Financier with a statutory declaration made
by 2 directors of the Borrower stating to
the best knowledge of such directors
whether or not an Event of Default or a
Potential Event of Default has occurred
and, if it has, setting out the details and
the steps (if any) taken by the Borrower to
remedy or cure the same;
24.
<PAGE> 376
(10) (NOTIFICATION OF CERTAIN EVENTS):
immediately notify the Financier in writing
as soon as it becomes aware of the
occurrence of:
(1) (EVENT OF DEFAULT): any Event of
Default or Potential Event of
Default;
(2) (LITIGATION): any litigation,
arbitration, criminal or
administrative proceedings or labour
disputes relating to the Borrower or
the Borrower's property, assets or
revenues that involves a claim
against the Borrower in excess of
$250,000 or that, if decided
adversely to the Borrower,
25.
<PAGE> 377
could have a material adverse
effect on the ability of the
Borrower to perform the Obligations;
(3) (BILLS): any change in the persons
authorised by it to sign notices,
certificates or other documents in
connection with the Facility or the
Bills, with specimen signatures of
any new person so authorised, and
giving to the satisfaction of the
Financier evidence, where requested
by the Financier, of the authority of
that person; or
(4) (TRUSTEE): it becoming or being
appointed the trustee of any trust
(other than the ALUT Trust) or comes
to hold any property subject to or
impressed by any trust (other than
the ALUT Trust);
(11) (NOTIFICATION ETC. OF TRANSFER OR ISSUE OF
UNITS): notify the Financier of any
proposed transfer, redemption or creation
of units in the ALUT Trust (including the
creation of new classes of units) and
provide the Financier with such details of
the proposed transfer, redemption or
creation (as the case may be) as the
Financier may reasonably require;
(l2) (RESTRICTION OF DEALINGS): other than as a
result of a transfer, redemption or
creation of units in the ALUT Trust
(including the creation of new classes of
units) not (without the prior written
consent of the Financier, which will not be
unreasonably withheld) sell or otherwise
dispose of or create any interest in any
Property;
(13) (PROCEEDS OF SALE OF PROPERTIES): subject
to the Relationship Agreement (as at the
date of this Agreement and as amended from
time to time with the prior approval of the
Financier) and except to the extent that
the Financier otherwise consents, ensure
that any proceeds of sale (or subdivision)
of any Properties or any other assets the
subject of any Security are applied to the
Financier as security for the Borrower's
indemnities under this Agreement (by being
credited to a bank account over which the
Financier has security or a right of set-
off, and the Borrower shall not withdraw
any moneys from such account without the
prior consent of the Financier);
(14) (NEGATIVE PLEDGE): not, create, permit or
suffer to exist any Encumbrance over the
Security Property or agree to do so without
the Financier's prior written consent,
except for:
(i) the Securities; and
(ii) encumbrances created by statute in favour
of governmental or semi-governmental
authorities or departments securing the
payment of Taxes except as created because
of any failure to duly pay any Taxes; and
(15) (GUARANTEES): except as permitted by the
Transaction Documents or
26.
<PAGE> 378
as required in the ordinary course of
the Business, the Borrower will not without
the Financier's prior written consent enter
into any bond, guarantee or indemnity in
favour of any person other than the
Financier.
11.2 Undertakings relating to the Security Property
For as long as any amount is outstanding under the Facility or the
Facility is available for Drawdown, the Borrower undertakes to the
Financier that:
(1) (GOOD REPAIR): where applicable, it will
(or will procure that the lessee of the
Security Property will) maintain and
protect the Security Property and keep the
same in a good and tenantable state of
repair and in good working order and
condition;
(2) (INSURANCE):
(1) it will insure such of the
Security Property as is of an
insurable nature and keep it
insured with a reputable,
responsible and solvent
insurer on terms, against
risks and in an amount
reasonably acceptable to the
Financier;
(2) it will take out and maintain
public risk insurance with
respect to the Security
Property with a reputable,
responsible and solvent
insurer on terms and in an
amount reasonably acceptable
to the Financier;
(3) it will procure that each
insurance policy has noted on
it the name of the Security
Trustee as an interested
party;
(4) it will duly and punctually
pay, or cause to be paid, all
premiums, commissions, stamp
duties, charges and other
expenses necessary for
effecting and maintaining in
force each insurance policy;
(5) it will on reasonable request
deliver to the Financier
certificates of currency in
respect of all such insurances
and all other details as to
the insurances that the
Financier requires;
(6) it will not do anything or
permit anything to be done
which may prejudice any policy
or omit to do anything where
that omission may prejudice a
policy;
(7) it will procure that each
insurance policy provides that
the proceeds of any loss in
respect of insurance of the
Security Property will,
subject to the terms of the
Lease, be paid to the Security
Trustee; and
(8) if the Borrower defaults in
effecting or keeping up any
insurance policy with respect
to the Security Property or if
any insurance policy from any
cause becomes void or
voidable, the Financier may
(but is not obliged to) effect
or keep up that insurance
policy at the cost of the
Borrower;
27.
<PAGE> 379
(3) (OUTGOINGS): it will duly and punctually
pay when due all outgoings (including rent
and Taxes) payable by it in respect of the
Security Property.
11.3 Trust undertakings
The Borrower undertakes to the Financier that:
(1) (OBSERVANCE OF OBLIGATIONS): it will
observe its obligations as trustee of the
ALUT Trust;
(2) (NEW TRUSTEE): it will notify the Financier
immediately in writing if it ceases for any
reason or at any time to be the sole
trustee of the ALUT Trust;
(3) (NEW TRUSTEE): it will, before it ceases to
be the sole trustee of the ALUT Trust,
procure any new trustee of the ALUT Trust
to execute in favour of the Financier any
undertakings, covenants, guarantees,
agreements or securities relating to the
Facility as the Financier reasonably
requires;
(4) (INTEREST TO BE SUBJUGATED): it will not,
without the Financier's prior written
consent, exercise in its own favour
personally, any right of indemnification,
reimbursement, recoupment, lien or charge
to which it might be entitled personally
against or in respect of all money or other
assets forming part of the ALUT Trust. If
any money or other assets which once formed
part of the ALUT Trust are at any time in
its hands freed of their trust character by
virtue of the exercise or purported
exercise of any right of indemnification,
reimbursement, recoupment, lien or charge,
it will hold that money and/or those assets
on trust for the Financier for the extent
to which any liability under the
Transaction Documents has not been
satisfied;
(5) (DETERMINATION OF ALUT TRUST ETC.): it will
notify the Financier immediately in writing
if the ALUT Trust is determined or for any
other reason ceases to exist and will also
notify the Financier immediately in writing
if it is required or directed by any of the
beneficiaries of the ALUT Trust to do any
act or thing in relation to the ALUT Trust
or the trust funds thereof;
(6) (NO DISTRIBUTION): (except as contemplated
by the Moran Documents or the FAI Documents
as at the date of this Agreement) a
distribution of any of the capital of the
ALUT Trust will not be made without the
Financier's prior written consent; and
(7) (ALUT TRUST STATEMENTS): it will furnish to
the Financier whenever reasonably required
by the Financier a copy of the current
financial statements of the ALUT Trust
certified as correct by a registered
28.
<PAGE> 380
company auditor.
13. DEFAULT AND TERMINATION
13.1 Events of default
Each of the events set out below is an Event of Default, whether or
not the cause is beyond the control of the Borrower or any other
person:
(1) (FAILURE TO PAY): the Borrower does not pay
at or before the due time on the due date
and in the specified manner, any amount
payable by it under any Transaction
Document to which it is a party;
(2) (FAILURE TO COMPLY): the Borrower defaults
in fully performing, observing and
fulfilling any material provision of any
Transaction Document to which it is a party
(other than a provision requiring the
payment of money as described in clause
13.1(a)), and if that default is capable of
remedy, it has not been remedied within 14
days of the occurrence of the default;
(3) (UNTRUE WARRANTY): any representation,
warranty or statement made, repeated or
deemed to be made or repeated by the
Borrower in any Transaction Document to
which it is a party or in connection with
the Facility or any accounts or opinion
furnished in connection with the
application for the Facility or under this
Agreement is proved to be untrue in any
material respect when made, repeated or
deemed to be made, repeated or furnished
(as the case may be);
(4) (BREACH OF UNDERTAKING): the Borrower
breaches any material undertaking given at
any time to the Financier or fails to
comply with any condition imposed by the
Financier in agreeing to any matter
(including any waiver);
(5) (EVENT OF DEFAULT UNDER TRANSACTION
DOCUMENT): any event of default occurs
under any Transaction Document and is not
remedied within any period permitted in the
relevant Transaction Document, or waived;
(6) (MORAN DOCUMENTS): any material breach of,
or default under, any Moran Document occurs
which results, or is reasonably likely to
result, in any termination or repudiation
of any Moran Document, and:
(1) the Borrower fails to
demonstrate to the
satisfaction of the Financier
that it has taken, or is
taking, steps to remedy that
breach or default or its
effect; and
(2) the breach or default is
likely, in the reasonable
opinion of the Financier, to
have a material adverse effect
on the
29.
<PAGE> 381
Borrower's ability to perform its
obligations under the Transaction
Documents to which it is a party;
(7) (EVENT OF INSOLVENCY): any Insolvency Event
occurs in respect of the Borrower or any of
its Related Bodies Corporate.
(8) (INVESTIGATION): an investigation into the
affairs or particular affairs of the
Borrower or any of its Related Bodies
Corporate is directed or commenced under
the Corporations Law;
(9) (TRUST DEED): the Trust Deed is varied,
amended or terminated without the prior
written consent of the Financier in a
manner which is likely, in the reasonable
opinion of the Financier, to have a
material adverse effect on the Borrower's
ability to perform its obligations under
the Transaction Documents to which it is a
party;
(10) (CESSATION OF BUSINESS): the Borrower or
any of its Related Bodies Corporate ceases,
or threatens to cease, to carry on all or a
substantial part of the Business;
30.
<PAGE> 382
(11) (VOID OR VOIDABLE): any Transaction
Document is, becomes or is claimed by the
Borrower or any of its Related Bodies
Corporate to be, void, voidable or
unenforceable in whole or in part;
(l2) (ILLEGALITY): at any time it is unlawful
for the Borrower or any of its Related
Bodies Corporate to perform any of its
obligations under any Transaction Document
to which it is a party;
(13) (FAILURE TO COMPLY WITH LAWS): the Borrower
fails to duly and punctually comply with
all statutes and other laws binding on it
and the result is likely, in the reasonable
opinion of the Financier, to have a
material adverse effect on the Borrower's
ability to perform its obligations under
the Transaction Documents to which it is a
party;
(14) (REDUCTION IN CAPITAL): without the
Financier's prior written consent, the
Borrower takes action to reduce its share
capital (other than a reduction of share
capital undertaken whilst the Borrower is
solvent on terms approved by the
Financier);
(15) (RESERVE LIABILITY): without the
Financier's prior written consent, any
meeting of the Borrower is convened for the
purpose of considering or passing a special
resolution under section 188(2) of the
Corporations Law or any such resolution is
proposed at any meeting of the Borrower; or
(16) (MATERIAL ADVERSE CHANGE): any other event
or series of events occurs, whether related
or not, and including, without limitation,
any material adverse change in the business
assets or financial condition of the
Borrower or the ALUT Trust which in the
reasonable opinion of the Financier could
affect the ability or willingness of the
Borrower to perform, observe and fulfil all
or any of its material obligations under
any Transaction Document to which it is a
party.
12.2 FINANCIER'S RIGHTS ON EVENT OF DEFAULT
If any Event of Default occurs, the Financier may by written notice
to the Borrower:
(1) declare the Financier's obligations under
this Agreement to be cancelled immediately
and the same and the Facility will be
cancelled immediately; and/or
(2) declare all money the payment of which
forms part of the Obligations (including
full cash cover for the aggregate face
value of both Bills by way of security for
the Borrower's indemnities in this
Agreement) immediately due and payable, and
the same shall thereupon be immediately due
and payable.
31.
<PAGE> 383
12.3 Review event
It shall be a review event if (without the Financier's prior
written consent) any change in the Control of the Borrower or the
ALUT Trust occurs.
12.4 Consequences of Review Event
If all of the following conditions are satisfied:
(1) a Review Event occurs;
(2) the Borrower fails to satisfy the
Financier, within 28 days of the Review
Event occurring, that the Review Event will
not affect the ability or willingness of
the Borrower to perform, observe and
fulfill all or any of its obligations under
any Transaction Document to which it is a
party; and
(3) the Financier notifies the Borrower in
writing of the Borrower's failure to
satisfy the Financier of the matters
referred to in paragraph (b),
then an Event of Default shall be taken to have occurred at the
time of the giving of the notice referred to in paragraph (c).
13. ADDITIONAL INDEMNITY
The Borrower agrees to indemnify the Financier and keep the
Financier indemnified against any loss, cost or expenses which the
Financier may sustain or incur as a consequence of:
(1) any sum payable by the Borrower under this
Agreement not being paid when due; or
(2) the occurrence of any Event of Default or
Potential Event of Default.
Such losses, costs or expenses will include the amount determined
in good faith by the Financier as being loss including loss or
margin, cost or expense incurred by reason of the liquidation or
re-employment of deposits or other funds acquired or contracted for
by the Financier to fund or maintain the Drawdown or amount.
14. EXPENSES AND STAMP DUTIES
14.1 Expenses
The Borrower will on demand reimburse the Financier for, and keep
the Financier indemnified against, all expenses including legal
fees, costs and disbursements on a solicitor/own client basis
assessed without the necessity of taxation incurred by the
Financier in connection with:
32.
<PAGE> 384
(1) (PREPARATION): the preparation and
execution of the Transaction Documents and
any subsequent consent, agreement, approval
or waiver thereunder or amendment thereto;
and
(2) (ENFORCEMENT): the enforcement, attempted
enforcement or the preservation of any
rights under the Transaction Documents
including, without limitation, any expenses
incurred in the evaluation of matters of
material concern to the Financier.
14.2 Stamp Duties
(1) (PAYMENT OF ALL DUTIES): The Borrower must
pay all stamp, loan transaction,
registration and similar Taxes, including
fines and penalties, financial institutions
duty and debits tax which may be payable to
or required to be paid by any applicable
authority or determined to be payable in
connection with the execution, delivery,
performance or enforcement of the
Transaction Documents or any payment,
receipt or any other transaction
contemplated by them.
(2) (INDEMNITY): The Borrower will indemnify
and keep indemnified the Financier against
any loss or liability incurred or suffered
by it as a result of the delay or failure
by the Borrower to pay Taxes.
15. ASSIGNMENTS
15.1 Assignments by the Financier
The Financier may at any time assign or otherwise transfer all or
any part of its rights under any Transaction Document to another
bank or financial institution and may disclose to a proposed
assignee or transferee information in the possession of the
Financier relating to the Borrower.
15.2 Assignments by the Borrower
The Borrower cannot assign any part of its rights under any
Transaction Document without the prior written consent of the
Financier.
15.3 Successors and assigns
This Agreement is binding on and enures to the benefit of each
party to it and that party's respective successors and permitted
assigns.
16. GOVERNING LAW AND JURISDICTION
16.1 Governing law
Each Transaction Document is governed by and construed in
accordance with the laws of
33.
<PAGE> 385
New South Wales.
16.2 Jurisdiction
(1) (ACCEPTANCE OF JURISDICTION): The Borrower
irrevocably submits to and accepts,
generally and unconditionally, the
non-exclusive jurisdiction of the courts
and appellate courts of New South Wales as
the Financier may elect with respect to any
legal action or proceedings which may be
brought at any time relating in any way to
any Transaction Document.
(2) (NO OBJECTION TO INCONVENIENT FORUM): The
Borrower irrevocably waives any objection
it may now or in the future have to the
venue of
34.
<PAGE> 386
any such action or proceedings and any
claim it may now or in the future have that
any such action or proceeding has been
brought in an inconvenient forum.
17. MISCELLANEOUS
17.1 Certificate of Financier
A certificate in writing signed by an officer of the Financier
certifying the amount payable by the Borrower under this Agreement
to the Financier or stating any other act, matter or thing relating
to any Transaction Document is conclusive and binding on the
Borrower in the absence of manifest error on the face of the
certificate.
17.2 Notices
Any notice or other communication which must be given, served or
made under or in connection with any Transaction Document:
(1) must be in writing in order to be valid;
(2) is sufficient if executed by the party
giving, serving or making the same or on
its behalf by any attorney, director,
secretary, other duly authorised officer or
solicitor of such party;
(3) will be deemed to have been duly given,
served or made in relation to a person if
it is delivered or posted by prepaid post
to the address, or sent by facsimile to the
number of that person set out herein (or at
such other address or number as is notified
in writing by that person to the other
parties from time to time); and
(4) will be deemed to be given, served or made:
(1) (in the case of prepaid post)
on the fifth day after the
date of posting;
(2) (in the case of facsimile) on
receipt of a transmission
report confirming successful
transmission; and
(3) (in the case of delivery by
hand) on delivery.
The address and facsimile numbers of the parties for the purposes
of this clause are:
THE FINANCIER
Address: 10 Spring Street, Sydney NSW 2000
Fax No: (02) 9321 2139
Attention: Kevin Moss
THE COMPANY
35.
<PAGE> 387
To each of:
36.
<PAGE> 388
Omega Healthcare Investors, Inc
905W. Eisenhower Circle
Suite 110
Ann Arbor, Michigan 48103
Facsimile 0011 1 313 996 0020
and:
Omega (UK) Limited
145 Cannon Street
London EC4N 5BP
Facsimile 0011 44 171 929 3555
17.3 Continuing obligation
Each Transaction Document constitutes a continuing obligation
regardless of any settlement of account, intervening payment,
express or implied revocation or any other matter or thing, until a
final discharge has been given to the Borrower.
17.4 Settlement conditional
Any settlement or discharge between the Financier and the Borrower
is conditional on any security or payment given or made to the
Financier by the Borrower or any other person in relation to the
Obligations not being avoided, repaid or reduced by virtue of any
Insolvency Provision. If a security or payment is so avoided,
repaid or reduced, the Financier will be entitled to recover its
value or amount from the Borrower subsequently as if the settlement
or discharge had not occurred.
17.5 Further assurance
The Borrower on demand by the Financier and at the entire cost and
expense of the Borrower will perform all such acts and execute all
such agreements, assurances and other documents and instruments as
the Financier reasonably requires to perfect or improve the rights
and powers afforded, created, or intended to be afforded or
created, by any Transaction Document.
17.6 Attorney
The Borrower hereby irrevocably appoints:
(1) the Financier;
(2) each director and secretary from time to
time of the Financier;
(3) each person authorised by the Financier
from time to time to execute cheques on its
behalf (whether alone or jointly with any
other person); and
37.
<PAGE> 389
(4) any duly appointed agent of the Financier,
38.
<PAGE> 390
jointly and severally the attorney of the Borrower, in the
Borrower's name and on the Borrower's behalf, at any time after the
occurrence of an Event of Default and in any manner as the
Financier in its absolute discretion thinks fit to:
(5) deal with, execute, draw, accept, indorse
or vary the terms of a Bill or execute and
deliver all deeds, instruments and
documents and do all acts necessary or
proper for any such purpose;
(6) do all acts necessary or proper to further
or fully assure any Transaction Document or
a Bill to the Financier; and
(7) do all acts necessary or proper to perfect
or improve the rights and powers afforded
or created, or intended to be afforded or
created, by any Transaction Document.
17.7 Severability of provisions
Any provision of any Transaction Document which is illegal, void or
unenforceable will be ineffective to the extent only of the
illegality, voidness or unenforceability without invalidating the
remaining provisions of this Agreement or the Transaction Document.
17.8 Transaction Documents
Notwithstanding the collateral nature of the Transaction Documents,
if any Event of Default occurs, the Financier is thereupon entitled
to exercise the powers arising from each and every one of the
Transaction Documents without the necessity of giving notice to any
party to this Agreement or to any other person except to the extent
required by the Transaction Document.
17.9 Remedies cumulative
The rights and remedies conferred by this Agreement on the
Financier are cumulative and in addition to all other rights or
remedies available to the Financier by law or by virtue of any
Transaction Document.
17.10 Waiver
A failure to exercise or enforce or a delay in exercising or
enforcing or the partial exercise or enforcement of any right,
remedy, power or privilege under any Transaction Document by the
Financier will not in any way preclude or operate as a waiver of
any further exercise or enforcement thereof or the exercise or
enforcement of any other right, remedy, power or privilege
thereunder or provided by law.
17.11 Consents and approvals
Where any act, matter or thing under any Transaction Document
depends on the consent or approval of the Financier, then unless
expressly provided otherwise in that document, that consent or
approval may be given, given subject to any condition, or withheld
in the
39.
<PAGE> 391
absolute and unfettered discretion of the Financier.
17.12 Written waiver, consent and approval
Any waiver, consent or approval given by the Financier under any
Transaction Document will only be effective and only binds the
Financier if it is given in writing, or given verbally and
subsequently confirmed in writing, and executed by the Financier or
on its behalf by an officer for the time being of the Financier.
17.13 Time of essence
Time is of the essence in respect of the Borrower's obligations
under the Transaction Documents.
17.14 Professional fees
Where the Financier has to make any determination (whether in
respect of a Drawdown or otherwise), it may employ such consultants
or persons as it in its absolute discretion thinks fit to assist in
making that determination. The Borrower will reimburse the
Financier for any fees paid by the Financier to any such persons on
receipt of a written demand therefor, and will pay any fees due
direct to any such persons on request by the Financier.
17.15 Moratorium legislation
To the fullest extent permitted by law, the provisions of all
statutes whether existing now or in the future and whether
operating directly or indirectly to lessen or otherwise to vary or
affect in favour of the Borrower any obligation under any
Transaction Document, or to delay or otherwise prevent or
prejudicially affect the exercise of any rights or remedies
conferred on the Financier under any Transaction Document, are
hereby expressly waived, negatived and excluded.
17.16 Mutual accounts
The Borrower authorises the Financier without prior notice to
set-off any amount owing by the Borrower under this Agreement,
whether present or future, actual, contingent or prospective and on
any account, against any liability whether present, future, actual,
contingent or prospective of the Financier to the Borrower. The
Financier is not obliged to exercise any of its rights under this
clause, which is without prejudice and in addition to any right of
set-off, combination of accounts, lien or other right to which it
is at any time otherwise entitled whether by operation of law,
contract or otherwise. The Financier may effect such currency
exchanges as it considers appropriate in the exercise of any of its
rights under this clause.
17.17 Binding on each signatory
Each Transaction Document is binding on each of the signatories
notwithstanding that any one or more of the named parties does not
execute it, that there is any invalidity, forgery
40.
<PAGE> 392
or irregularity touching its execution, or that it is or becomes
unenforceable, void or voidable against a named party.
17.18 Counterparts
This Agreement may be executed in a number of counterparts, all of
which taken together will constitute one and the same document.
18. NO REPRESENTATION BY OR RELIANCE ON THE FINANCIER
The Borrower acknowledges that:
(1) it has relied upon its own inquiries as to
the nature and extent of the entire
relationship between itself and the
Financier whether or not recorded in the
Transaction Documents, and the nature and
effect of the Transaction Documents; and
(2) it has not entered into any Transaction
Document in reliance on or as a result of
any representation, promise, statement,
conduct or inducement to that party by or
on behalf of the Financier otherwise than
as embodied in the Transaction Documents.
41.
<PAGE> 393
SCHEDULE 1
PROPERTIES
Berkeley Village
(8 Lorraine Avenue, Wyong)
(Vol. 8624, Fol. 130, being Lot 2 in DP 711127)
Cherrywood Grove
(152-170 Sieben Drive, Orange)
(FI 27/837884 being Lot 27 in DP 837884)
Edgewood Park
(269 Beach Road, Denhams Beach)
(Vol 8643 Fol 95 being Lot 22 in DP 777719)
Endeavour
(79 Hawkesbury Road, Springwood)
(Vol 8641, Fol 117 being Lot 2 in DP 532226)
Glenmere
(100 Wahroonga Road, Kanwal)
(Vol 8644, Fol 38 being Lot 56 in DP 804916)
Hillside
(3 Violet Town Road, Mount Hutton)
(Vol 8638 fol 198 being Lot 100 in DP 802320)
Killarney Vale
(1 Daniel Close, Killarney Vale)
(FI 22/794053) and (Vol 8641 Fol 95,
being lots 3, 4, 5, 6, 7, 8, 9, 10, 11 and
12 in DP 732182)
Oban
(15 Sturgeon Street, Raymond Terrace)
(FI 16/37509, 2/37509, 3/37509, 4/37509, 5/37509,
6/37509 and 17/111507)
Seaside
(184 Garden Street, Warriewood)
(51/SP22115)
Tweed Heads
(Carramar Drive, West Tweed Heads)
(FI 1/719133, FI 11/736515 and Vol. 8644 Fol 37
(being Lot 10 in DP 736515)
42.
<PAGE> 394
SCHEDULE 2
DRAWDOWN NOTICE
To: ABN AMRO Australia Limited, ACN 000 862 797
From: Premier Care Australia Pty Limited, ACN 069 875 476
Date: [ ] 1998
DRAWDOWN NOTICE
BILL FACILITY AGREEMENT DATED [ ] 1998 BETWEEN PREMIER CARE
AUSTRALIA PTY LIMITED IN ITS PERSONAL CAPACITY AND IN ITS CAPACITY
AS TRUSTEE OF THE ALUT TRUST AND ABN AMRO AUSTRALIA LIMITED
("FACILITY AGREEMENT")
Dear Sirs
In accordance with clause 3.1 of the Facility Agreement we hereby request you to
accept the Bills.
Terms used in this Drawdown Notice and defined in the Facility Agreement have
the same meaning as in the Facility Agreement.
We confirm that:
(a) the representations and warranties contained in the Facility
Agreement and deemed to be repeated by clause 11.4 of the Facility
Agreement are true and correct as of the date of this Drawdown
Notice and will be true and correct on the Drawdown Date as though
made on that date; and
(b) no Event of Default or Potential Event of Default is subsisting at
the date of this Drawdown Notice or will be subsisting at the
Drawdown Date or may result from the acceptance of the Bills by ABN
AMRO Australia Limited.
For and on behalf of
PREMIER CARE AUSTRALIA PTY LIMITED
- -------------------------------------------
[Authorised Signatory of Borrower]
43.
<PAGE> 395
SIGNED as an agreement.
SIGNED for and on behalf of )
PREMIER CARE AUSTRALIA PTY ) -----------------------------
LIMITED by ) (Signature)
its Attorney under a Power of )
Attorney dated and who )
declares that he has not received )
any notice of the revocation of )
such Power of Attorney in the )
presence of: )
- -------------------------------
(Signature of Witness)
- -------------------------------
(Name of Witness in Full)
SIGNED for and on behalf of )
ABN AMRO AUSTRALIA PTY LIMITED by )
its Attorney under a Power of ) ------------------------
Attorney dated and who ) (Signature)
declares that he has not received )
any notice of the revocation of )
such Power of Attorney in the )
presence of:
- -------------------------------
(Signature of Witness)
- -------------------------------
(Name of Witness in Full)
44.
<PAGE> 396
TABLE OF CONTENTS
CLAUSE PAGE
1. DEFINITIONS AND INTERPRETATION 1
1.1 DEFINITIONS 1
1.2 INTERPRETATION 7
2. THE FACILITY 9
2.1 COMMITMENT 9
2.2 PURPOSE 9
2.3 TERMINATION 9
3. DRAWDOWN 9
3.1 NOTICE 9
3.2 CONTENTS OF DRAWDOWN NOTICE 9
3.3 REQUIREMENTS OF DRAWDOWN NOTICE 9
3.4 THE BILLS 10
3.5 ACCEPTANCE 10
4. CONDITIONS PRECEDENT 10
4.1 CONDITIONS PRECEDENT 10
4.2 FURTHER CONDITIONS PRECEDENT 12
4.3 CERTIFICATION 12
5. INDEMNITY AND CASH COVER 12
6. REPAYMENT 12
7. INTEREST ON OVERDUE AMOUNTS 12
7.1 PAYMENT OF INTEREST 12
7.2 ACCRUAL OF INTEREST 13
8. FEES 13
8.1 ACCEPTANCE FEE 13
8.2 ESTABLISHMENT FEE 13
8.3 FEES NON-REFUNDABLE 13
9. PAYMENTS 13
(2)
<PAGE> 397
9.1 TIME AND PLACE 13
9.2 NO DEDUCTION FOR TAXES AND NO SET-OFF OR COUNTERCLAIM 13
9.3 MERGER 14
9.4 CONVERSION OF FOREIGN CURRENCY RECEIPTS TO DOLLARS 14
9.5 COSTS OF CONVERSION 14
9.6 FOREIGN CURRENCY INDEMNITY 14
10. ILLEGALITY AND INCREASED COSTS 14
10.1 ILLEGALITY 14
10.2 INCREASED COST 15
11. REPRESENTATIONS AND WARRANTIES 16
11.1 GENERAL REPRESENTATIONS AND WARRANTIES 16
11.2 CORPORATE REPRESENTATIONS AND WARRANTIES 17
11.3 TRUST REPRESENTATIONS AND WARRANTIES 17
11.4 REPRESENTATIONS AND WARRANTIES REPEATED 19
11.5 NO REPRESENTATION BY FINANCIER 19
12. UNDERTAKINGS 19
12.1 GENERAL UNDERTAKINGS 19
12.2 UNDERTAKINGS RELATING TO THE SECURITY PROPERTY 22
12.3 TRUST UNDERTAKINGS 22
13. DEFAULT AND TERMINATION 23
13.1 EVENTS OF DEFAULT 23
13.2 FINANCIER'S RIGHTS ON EVENT OF DEFAULT 25
13.3 REVIEW EVENT 25
13.4 CONSEQUENCES OF REVIEW EVENT 25
14. ADDITIONAL INDEMNITY 26
15. EXPENSES AND STAMP DUTIES 26
15.1 EXPENSES 26
15.2 STAMP DUTIES 26
16. ASSIGNMENTS 27
16.1 ASSIGNMENTS BY THE FINANCIER 27
16.2 ASSIGNMENTS BY THE BORROWER 27
16.3 SUCCESSORS AND ASSIGNS 27
(3)
<PAGE> 398
17. GOVERNING LAW AND JURISDICTION 27
17.1 GOVERNING LAW 27
17.2 JURISDICTION 27
18. MISCELLANEOUS 28
18.1 CERTIFICATE OF FINANCIER 28
18.2 NOTICES 28
18.3 CONTINUING OBLIGATION 29
18.4 SETTLEMENT CONDITIONAL 29
18.5 FURTHER ASSURANCE 29
18.6 ATTORNEY 29
18.7 SEVERABILITY OF PROVISIONS 30
18.8 TRANSACTION DOCUMENTS 30
18.9 REMEDIES CUMULATIVE 30
18.10 WAIVER 30
18.11 CONSENTS AND APPROVALS 30
18.12 WRITTEN WAIVER, CONSENT AND APPROVAL 30
18.13 TIME OF ESSENCE 31
18.14 PROFESSIONAL FEES 31
18.15 MORATORIUM LEGISLATION 31
18.16 MUTUAL ACCOUNTS 31
18.17 BINDING ON EACH SIGNATORY 31
18.18 COUNTERPARTS 31
19. NO REPRESENTATION BY OR RELIANCE ON THE FINANCIER 32
SCHEDULE 1 - PROPERTIES 33
SCHEDULE 2 - DRAWDOWN NOTICE 34
(4)
<PAGE> 399
TABLE OF CONTENTS
CLAUSE PAGE
(5)
<PAGE> 400
TABLE OF CONTENTS
CLAUSE PAGE
(6)
<PAGE> 401
DEED OF GUARANTEE AND INDEMNITY
DATE:
ABN AMRO FACILITIES AUSTRALIA LIMITED
Beneficiary
OMEGA WORLDWIDE INC.
Guarantor
<PAGE> 402
TABLE OF CONTENTS
CLAUSE PAGE
1. DEFINITIONS AND INTERPRETATION 1
1.1 DEFINITIONS 1
1.2 INTERPRETATION 1
2. GUARANTEE 2
2.1 GUARANTEE 2
2.2 PAYMENT BY GUARANTOR 2
3. INDEMNITY 2
4. LIMITED RECOURSE 3
5. NATURE AND PRESERVATION OF LIABILITY 3
5.1 ABSOLUTE LIABILITY 3
5.2 UNCONDITIONAL LIABILITY 3
5.3 NO MARSHALLING 5
5.4 VOID OR VOIDABLE TRANSACTIONS 5
5.5 NO DOUBLE PROOF 6
5.6 SUSPENSE ACCOUNT 6
5.7 PROOF OF DEBT IN COMPETITION WITH BENEFICIARY 6
5.8 NO SET-OFF, COUNTERCLAIM, ETC. 6
6
5.9 CLAIM ON THE GUARANTOR 6
5.10 NO REPRESENTATION BY BENEFICIARY 7
5.11 NO CONTRIBUTION 7
6. CORPORATE REPRESENTATIONS AND WARRANTIES 7
7. PAYMENTS 7
7.1 ON DEMAND 7
7.2 PAYMENT IN GROSS 7
7.3 APPROPRIATION OF PAYMENTS 7
7.4 INTEREST 8
7.5 MERGER 8
7.6 NO SET-OFF OR DEDUCTION 8
8. EXPENSES AND STAMP DUTY 8
16.
<PAGE> 403
8.1 EXPENSES 8
8.2 STAMP DUTIES 8
9. ASSIGNMENTS 9
10. GOVERNING LAW AND JURISDICTION 9
10.1 GOVERNING LAW 9
10.2 JURISDICTION 9
11. MISCELLANEOUS 9
11.1 CERTIFICATE OF BENEFICIARY 9
11.2 NOTICES 9
11.3 CONTINUING OBLIGATION 10
11.4 FURTHER ASSURANCE 10
11.5 FORM OF DEMAND 10
11.6 SEVERABILITY OF PROVISIONS 10
11.7 REMEDIES CUMULATIVE 10
11.8 WAIVER 10
11.9 CONSENTS AND APPROVALS 11
11.10 WRITTEN WAIVER, CONSENT AND APPROVAL 11
11.11 MORATORIUM LEGISLATION 11
11.12 DEBIT ACCOUNTS AND SET-OFF 11
11.13 COUNTERPARTS 11
17.
<PAGE> 404
DEED OF GUARANTEE AND INDEMNITY made at Sydney on 1998
BETWEEN ABN AMRO FACILITIES AUSTRALIA LIMITED, ACN 001 035 543
("BENEFICIARY")
AND OMEGA WORLDWIDE INC., ("GUARANTOR")
THIS DEED PROVIDES
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Deed words which are defined in the Debenture Stock Trust
Deed have the same meaning when sued in this Deed and:
"ALUT TRUST" means the trust constituted by the deed of trust dated
11 August 1995 between the Debtor, Metlife Australia (Holdings) Pty
Limited and FAI Deposit Co. Pty Limited.
"DEBENTURE STOCK TRUST DEED" means the deed so entitled dated on or
about the date of this Deed between the Debtor and the Beneficiary.
"DEBTOR" means Premier Care Australia Pty Limited ACN 069 875 476
both in its personal capacity and in its capacity as trustee of the
ALUT Trust.
"MORTGAGE OF DEPOSIT" means the mortgage so entitled dated on or
about the date of this Deed between the Beneficiary and the
Guarantor.
"SECURITY" means a mortgage, charge, pledge, lien, hypothecation,
guarantee (including this Guarantee), indemnity, letter of credit,
letter of comfort, performance bond, or other assurance against
loss which secures the Secured Money or the performance of the
Obligations, and whether existing at the date of this Deed or at
any time in the future.
1.2 INTERPRETATION
In this Deed:
(1) headings are for convenience only and do
not affect interpretation;
and unless the context indicates a contrary intention:
(2) the expression "PERSON" includes an
individual, the estate of an individual, a
body politic, a corporation and a statutory
or other authority or association
(incorporated or unincorporated);
(3) a reference to any party includes that
party's executors, administrators,
successors, substitutes and assigns,
including any person taking by way of
novation and, in the case of the trustee
1.
<PAGE> 405
includes any substituted or additional
trustee;
(4) a reference to this Deed, to a Transaction
Document or to any other document, includes
respectively this Deed, the Transaction
Document or that other document as amended,
varied, novated, supplemented, ratified or
replaced from time to time;
(5) a reference to any legislation or to any
statutory provision includes any statutory
modification, re-write or re-enactment or
any statutory provision substituted
therefor, and all ordinances, by-laws,
regulations and other statutory instruments
issued thereunder;
(6) words importing the singular include the
plural (and vice versa) and words denoting
a given gender include all other genders;
(7) a reference to a clause, schedule, annexure
or part is a reference to a clause,
schedule, annexure or part of this Deed;
(8) where any word or phrase is given a defined
meaning, any other part of speech or
grammatical form in respect of that word or
phrase has a corresponding meaning;
(9) all accounting terms used in this Deed have
the meaning given under accounting
principles and practices generally accepted
in Australia from time to time; and
(10) mentioning anything after "include",
"includes" or "including" does not limit
what else may be included.
2. GUARANTEE
2.1 GUARANTEE
The Guarantor irrevocably and unconditionally guarantees to the
Beneficiary the payment when due of the Secured Money and the
performance by the Debtor of all of its Obligations.
2.2 PAYMENT BY GUARANTOR
If the Debtor does not pay the Secured Money when due, the
Guarantor must on demand from time to time pay to the Beneficiary
the Secured Money which is then due and payable.
3. INDEMNITY
As a covenant separate and distinct from that contained in clause
2.1, the Guarantor irrevocably and unconditionally agrees to
indemnify the Beneficiary and at all times to keep the Beneficiary
indemnified against any loss or damage suffered by the Beneficiary
arising
2.
<PAGE> 406
out of:
(1) any failure by the Debtor to pay the
Secured Money duly and punctually; or
(2) any failure by the Debtor to observe or
perform any of its obligations under any
Transaction Document to which it is a
party; or
(3) any Transaction Document being wholly or
partly void, voidable or unenforceable
against the Debtor for any reason and
whether or not the Beneficiary knew or
ought to have known of that reason, with
the result, in any such case, that sums
which would (but for the voidness,
voidability, or unenforceability) have been
Secured Money are not recoverable by the
Beneficiary under clause 2.
4. LIMITED RECOURSE
A liability arising under this Guarantee and Indemnity or the
Mortgage of Deposit is limited to and can only be enforced against
the Guarantor to the extent to which it can be satisfied out of the
Mortgaged Property (as defined in the Mortgage of Deposit). This
limitation of the liability of the Guarantor applies despite any
other provision of this Guarantee and Indemnity or the Mortgage of
Deposit and extends to all liabilities and obligations of the
Guarantor in any way connected with any representation, warranty,
conduct, omission, agreement or transaction related to this
Guarantee and Indemnity or the Mortgage of Deposit.
The Beneficiary may not seek to recover any loss it may suffer as a
result of any failure of the Guarantor to comply with its
obligations under this Guarantee and Indemnity or the Mortgage of
Deposit other than by recourse to the Mortgaged Property. In
particular, the Beneficiary may not apply to bankrupt the
Guarantor, have the Guarantor wound up or prove in the winding up
of the Guarantor.
5. NATURE AND PRESERVATION OF LIABILITY
5.1 ABSOLUTE LIABILITY
Subject to clause 4, the liability of the Guarantor under this Deed
arises immediately on execution and delivery of this Deed by the
Guarantor, and:
(1) arises notwithstanding that any person
expressed to be a party to this Deed does
not execute and deliver this Deed, that
there is any invalidity, forgery or
irregularity in the execution or purported
execution of this Deed by any person, or
that this Deed is or becomes unenforceable
against any such person for any reason; and
(2) is not conditional on the entering into by
any other person of any other document or
agreement which might benefit (directly or
indirectly) the Guarantor, or on the
satisfaction of any other
3.
<PAGE> 407
condition.
5.2 UNCONDITIONAL LIABILITY
Subject to clause 4, the liability of the Guarantor under this Deed
will not be affected by any thing which, but for this clause 5.2,
would release the Guarantor from or reduce that liability,
including but not limited to:
(1) (INVALIDITY ETC.): any Transaction Document
being terminated or discharged (whether by
any party thereto or by operation of law)
or being or becoming void, voidable or
unenforceable for any reason;
(2) (OTHER SECURITIES): the Beneficiary
accepting or declining to accept any
Security from any person;
4.
<PAGE> 408
(3) (TIME OR INDULGENCE): the Beneficiary
granting or agreeing with the Guarantor or
the Debtor to grant time, waiver or other
indulgence or concession to, or making any
composition or compromise with any person;
(4) (FORBEARANCE): the Beneficiary not
exercising or delaying in the exercise of
any remedy or right it has at any time to
terminate or enforce its rights under this
Deed, any Transaction Document or any
Security;
(5) (VARIATION): any variation, novation or
alteration to or substitution of this Deed,
any Transaction Document or any Security,
whether or not that variation, novation or
alteration permits or results in a change
in the amount of the Secured Money or a
change in the date by which it must be
paid;
(6) (RELEASE): the full, partial or conditional
release or discharge by the Beneficiary or
by operation of law of the Beneficiary or
any other person from its obligations under
any Transaction Document or any Security;
(7) (SECURITIES): the Beneficiary enforcing,
releasing, disposing of, surrendering,
wasting, impairing, destroying, abandoning,
prejudicing, or failing or delaying to
perfect, maintain, preserve, realise or
enforce any Security, whether negligently
or otherwise;
(8) (ACCOUNTS): the opening or operation of any
new account with the Beneficiary by the
Debtor;
(9) (CHANGE OF CONSTITUTION): any change for
any reason in the name or manner in which
the Beneficiary carries on business,
including any change in any partnership,
firm or association of which the
Beneficiary is a member;
(10) (DISCLOSURE): any failure by the
Beneficiary to disclose to the Guarantor
any material or unusual fact, circumstance,
event or thing known by, or which ought to
have been known by, the Beneficiary before
or at any time after the date of this Deed;
(11) (PREJUDICIAL CONDUCT): any breach by the
Beneficiary of any term of any Transaction
Document or Security or any other act or
omission (negligent or otherwise) of the
Beneficiary with regard to any Transaction
Document or any Security which is
prejudicial to the interests of the
Guarantor;
(12) (PREFERENCE): any claim by any person that
a payment to, receipt by, or other
transaction in favour of the Beneficiary in
or towards
5.
<PAGE> 409
satisfaction of the Secured Money is void,
voidable or capable of being set aside
under any law relating to bankruptcy,
insolvency or liquidation being upheld,
conceded or compromised;
6.
<PAGE> 410
(13) (ASSIGNMENT): the transfer, assignment or
novation by the Beneficiary of all or any
of its rights or obligations under any
Transaction Document or Security to which
it is a party; or
(14) (ADMINISTRATION): the provisions of section
440J of the Corporations Law so operating
as to prevent or delay:
(1) the enforcement of this
Guarantee against the
Guarantor; and/or
(2) any claim for contribution
against the Guarantor.
5.3 NO MARSHALLING
The Beneficiary is under no obligation to marshal or appropriate in
favour of the Guarantor or to exercise, apply, transfer or recover
in favour of the Guarantor, any Security or any funds or assets
that the Beneficiary holds, has a claim on, or is entitled to
receive.
5.4 Void Or Voidable Transactions
If:
(1) the Beneficiary has at any time released or
(1) the Guarantor from its
obligations under this Deed or
any Security executed by the
Guarantor; or
(2) any assets of the Guarantor
from a Security,
in either case in reliance on a payment, receipt or
other transaction to or in favour of the Beneficiary;
(2) that payment, receipt or other transaction
is subsequently claimed by any person to be
void, voidable or capable of being set
aside for any reason, including under a law
relating to bankruptcy, insolvency or
liquidation; and
(3) that claim is upheld, conceded or
compromised,
then
(4) (RESTITUTION OF RIGHTS): the Beneficiary
will immediately become entitled against
the Guarantor to all such rights (including
under any Security) as it had immediately
before that release or discharge;
(5) (RESTORE BENEFICIARY'S POSITION): the
Guarantor must immediately do all things
and execute all documents as the
Beneficiary may reasonably require to
restore the Beneficiary all those rights;
and
7.
<PAGE> 411
(6) (INDEMNITY): the Guarantor must indemnify
and keep indemnified the Beneficiary
against costs, losses and expenses suffered
or incurred by the Beneficiary as a result
of the upholding, concession or compromise
of the claim.
5.5 No double proof
This Deed constitutes a guarantee of the whole of the Secured
Money, even if the Beneficiary and the Guarantor have agreed or
agree at any time that the Guarantor's liability under this Deed
will be limited to a maximum amount. Accordingly, the Guarantor is
not entitled to:
(1) lodge any proof of debt in the winding up
of the Debtor;
(2) exercise any right of subrogation; or
(3) otherwise be entitled to the benefit of any
Security held by the Beneficiary,
unless and until the Secured Money has been paid, discharged or
recovered by the Beneficiary in full.
5.6 Suspense account
The Beneficiary may retain and carry to a suspense account and
appropriate at the discretion of the Beneficiary any dividend
received by the Beneficiary in the winding-up of the Debtor, plus
any other sums received by the Beneficiary on account of the
Secured Money, until the Beneficiary has received the full amount
of the Secured Money.
5.7 Proof of debt in competition with beneficiary
The Guarantor must prove in the winding-up of the Debtor in respect
of any claim it has against the Debtor other than a claim arising
as a result of the Guarantor making a payment under this Deed, and
agrees to hold any dividend received in respect of that proof on
trust for the Beneficiary in or towards satisfaction of the
Guarantor's obligations under this Deed. The Guarantor appoints the
Beneficiary its attorney for the purposes of lodging a proof in the
Guarantor's name, and authorises the Beneficiary to retain and to
carry to a suspense account and appropriate at the discretion of
the Beneficiary any amounts received in respect of that proof
until, after taking the amount into account, the Beneficiary has
recovered an amount equal to all of the Secured Money.
5.8 No set-off, counterclaim, etc.
The liability of the Guarantor under this Deed will not be reduced
or avoided by any defence, set-off or counterclaim available to the
Debtor against the Beneficiary.
8.
<PAGE> 412
5.9 Claim on the guarantor
The Beneficiary is not required to take any steps to enforce its
rights under any Transaction Document or Security before enforcing
its rights against the Guarantor under this Deed.
5.10 No representation by beneficiary
The Guarantor acknowledges that in entering into this Deed it has
not relied on any representation, warranty or statement by the
Beneficiary.
5.11 No contribution
The Guarantor must not make a claim under or enforce any right of
contribution it may have against the Debtor unless and until the
Secured Money has been paid, discharged or recovered by the
Beneficiary in full.
6. CORPORATE REPRESENTATIONS AND WARRANTIES
The Guarantor represents and warrants to the Beneficiary that:
(1) (MEMORANDUM AND ARTICLES): the execution,
delivery and performance of this Deed does
not violate its constituent documents or
any other document, agreement, law or rules
by which it is bound;
(2) (CORPORATE POWER): it has taken all action
required to enter into this Deed and to
authorise the execution and delivery of
this Deed and the performance of its
obligations under this Deed;
(3) (FILINGS): it has filed all notices and
effected all registrations with the
Australian Securities Commission or similar
office in its jurisdiction of incorporation
and in any other jurisdiction as required
by law, and those filings and registrations
are current, complete and accurate;
(4) (CORPORATE BENEFIT): the execution of this
Deed is in the best commercial interests of
the Guarantor; and
(5) (CONSIDERATION): this Deed is executed for
valuable consideration, the receipt and
adequacy of which the Guarantor
acknowledges.
7. PAYMENTS
7.1 On demand
All money payable by the Guarantor under this Deed must be paid on
demand by the Beneficiary in immediately available funds to the
account and in the manner notified from time to time by the
Beneficiary to the Guarantor.
7.2 Payment in gross
9.
<PAGE> 413
All money received or recovered by the Beneficiary on account of
the Secured Money will be treated as payments in gross.
7.3 Appropriation of payments
The Beneficiary may appropriate any money received by it under or
in respect of this Deed or any Transaction Document or Security in
the manner and order and at all times as the Beneficiary in its
absolute discretion determines.
7.4 Interest
The Guarantor must on demand by the Beneficiary from time to time
pay interest on all amounts due and payable by it and unpaid under
or in respect of this Deed. Interest will accrue on those amounts
from day to day from the due date up to the date of actual
payment, before and (as a separate and independent obligation)
after judgment, at the Specified Rate for successive 90 day
interest periods commencing on the date of default and, if not paid
when due, will itself bear interest in accordance with this clause
7.4.
7.5 Merger
If the liability of the Guarantor to pay to the Beneficiary any
money under this Deed becomes merged in any judgment or order, then
as an independent obligation the Guarantor must pay interest on the
amount of that money at the rate which is the higher of that
payable under clause 7.4 and that fixed by or payable under the
judgment or order.
7.6 No set-off or deduction
All payments by the Guarantor under this Guarantee and Indemnity
will be free of any set-off or counterclaim and without deduction
or withholding for any present or future Taxes unless the Guarantor
is compelled by law to make any deduction or withholding and if
this is the case, the Guarantor must pay to the Beneficiary any
additional amounts as are necessary to enable the Beneficiary to
receive, after all those deductions and withholdings, a net amount
equal to the full amount which would otherwise have been payable
had no deduction or withholding been required to be made.
8. EXPENSES AND STAMP DUTY
8.1 Expenses
The Guarantor must on demand indemnify and keep the Beneficiary
indemnified against all expenses, including legal fees, costs and
disbursements on a solicitor/own client basis, incurred by the
Beneficiary in connection with:
(1) (PREPARATION): the negotiation, preparation
and execution of this Deed and any
subsequent consent, agreement, approval or
waiver hereunder or amendment to it; and
10.
<PAGE> 414
(2) (ENFORCEMENT): the enforcement, attempted
enforcement or preservation of any rights
under this Deed.
8.2 STAMP DUTIES
The Guarantor must:
(1) (PAYMENT OF ALL DUTIES): pay all stamp
duties, registration and similar Taxes,
including fines and penalties, financial
institutions duty and debits tax in
connection with the execution, delivery,
performance, enforcement, or attempted
enforcement of this Deed or any payment or
other transaction under or contemplated in
this Deed; and
(2) (INDEMNITY): indemnify and keep
indemnified the Beneficiary against any
loss or liability incurred or suffered by
it as a result of the delay or failure by
the Guarantor to pay Taxes.
9. ASSIGNMENTS
The Beneficiary may at any time assign or otherwise transfer all or
any part of its rights under this Deed and may disclose to a
proposed assignee or transferee any information in the possession
of the Beneficiary relating to the Guarantor.
10. GOVERNING LAW AND JURISDICTION
10.1 Governing law
This Deed is governed by and will be construed in accordance with
the laws of New South Wales.
10.2 Jurisdiction
(1) (ACCEPTANCE OF JURISDICTION): The Guarantor
irrevocably submits to and accepts,
generally and unconditionally, the
non-exclusive jurisdiction of the courts
and appellate courts of New South Wales
with respect to any legal action or
proceedings which may be brought at any
time relating in any way to this Deed.
(2) (NO OBJECTION TO INCONVENIENT FORUM): The
Guarantor irrevocably waives any objection
it may now or in the future have to the
venue of any action or proceeding, and any
claim it may now or in the future have that
any action or proceeding has been brought
in an inconvenient forum.
11. MISCELLANEOUS
11.1 Certificate of beneficiary
11.
<PAGE> 415
A certificate in writing of the Beneficiary certifying the amount
payable by the Debtor or the Guarantor to the Beneficiary or
stating any other act, matter or thing relating to this Deed, any
Transaction Document or any Security will be conclusive and binding
on the Guarantor in the absence of manifest error on the face of
the certificate.
11.2 Notices
Every notice or other communication to be given or made under or
arising from this Deed:
(1) must be in writing;
(2) must be signed by a person duly authorised
(3) will be deemed to have been duly given or
made to a person if delivered or posted by
prepaid post to the address, or sent by fax
to the fax number of that person set out in
from time to time; and
(4) will be deemed to be given or made:
(1) (in the case of prepaid post)
on the fifth day after the
date of posting;
(2) (in the case of delivery by
hand) on delivery;
(3) (in the case of fax) on
receipt of a transmission
report confirming successful
transmission.
11.3 Continuing obligation
This Deed will be a continuing obligation notwithstanding any
termination by the Guarantor, settlement of account, intervening
payment, express or implied revocation or any other matter or
thing, and continues to entitle the Beneficiary to the due and
punctual payment of any of Secured Money which becomes due or owing
or is incurred after termination, settlement of account, payment,
revocation or other matter or thing until a final discharge has
been given to the Guarantor.
11.4 Further assurance
The Guarantor will immediately on demand by the Beneficiary and at
the entire cost and expense of the Guarantor, perform all things
and execute all agreements, assurances and other documents as the
Beneficiary reasonably requires, to perfect or give effect to the
rights and powers of the Beneficiary created, or intended to be
created, by this Deed.
11.5 Form of demand
A demand on the Guarantor for payment under this Deed may be in the
form and contain any information as the Beneficiary determines. It
need not specify the amount of the Secured Money, nor the method or
basis of calculation of all or any part of the Secured Money,
including without limitation amounts of, or in the nature of
interest.
12.
<PAGE> 416
11.6 Severability of provisions
Any provision of this Deed which is illegal, void or unenforceable
will be ineffective to the extent only of that illegality, voidness
or unenforceability without invalidating the remaining provisions.
11.7 Remedies cumulative
The rights and remedies conferred by this Guarantee and Indemnity
on the Beneficiary are cumulative and in addition to all other
rights or remedies available to the Beneficiary by law or by virtue
of any Transaction Document or Security.
11.8 Waiver
A failure to exercise or enforce, or a delay in exercising or
enforcing, or the partial exercise or enforcement of any right,
remedy, power or privilege under this Deed by the Beneficiary will
not in any way preclude or operate as a waiver of any further
exercise or enforcement of it, or the exercise or enforcement of
any other right, remedy, power or privilege under this Deed or
provided by law.
11.9 Consents and approvals
Where under this Deed the consent or approval of the Beneficiary is
required to any act or thing, then unless expressly provided
otherwise in this Deed, that consent or approval may be given or
withheld in the absolute and unfettered discretion of the
Beneficiary.
11.10 Written waiver, consent and approval
Any waiver, consent or approval given by the Beneficiary under this
Guarantee and Indemnity will only be effective and will only bind
the Beneficiary if it is given in writing, or given verbally and
subsequently confirmed by the Beneficiary in writing.
11.11 Moratorium legislation
To the fullest extent permitted by law, the provisions of all
legislation whether existing now or in the future, operating
directly or indirectly:
(1) to lessen or otherwise to vary or affect in
favour of the Guarantor any obligation
under this Deed; or
(2) to delay or otherwise prevent or
prejudicially affect the exercise of any
rights or remedies conferred on the
Beneficiary under this Guarantee and
Indemnity,
are expressly waived and excluded.
11.12 Debit accounts and set-off
13.
<PAGE> 417
The Beneficiary may without prior notice to the Guarantor set-off
any amount which or may become owing, actually or contingently and
on any account whatsoever by the Beneficiary to the Guarantor
against any liability actual or contingent of the Guarantor to the
Beneficiary under this Deed. The rights of the Beneficiary under
this clause 11.12 are without prejudice and in addition to any
other right or remedy to which it is at any time entitled.
11.13 Counterparts
This Guarantee and Indemnity may be executed in any number of
counterparts and by the different parties on different
counterparts, each of which constitutes an original of this Deed,
and all of which together constitute one and the same instrument.
EXECUTED as a deed.
SIGNED SEALED AND DELIVERED )
for and on behalf of ) ------------------------------
ABN AMRO FACILITIES AUSTRALIA ) (Signature)
LIMITED, ACN 001 035 543 by )
)
its Attorney under a Power of Attorney )
dated and who declares that he )
has not received any notice of the revocation )
of such Power of Attorney in the presence )
of: )
- ---------------------------------------------
(Signature of Witness)
- ---------------------------------------------
(Name of Witness in Full)
14.
<PAGE> 418
SIGNED SEALED AND DELIVERED )
for and on behalf of ) -------------------------------
OMEGA WORLDWIDE INC., by ) (Signature)
)
its Attorney under a Power of Attorney )
dated and who declares that he )
has not received any notice of the revocation )
of such Power of Attorney in the presence )
of:
- ---------------------------------------------
(Signature of Witness)
- ---------------------------------------------
(Name of Witness in Full)
15.
<PAGE> 419
MORTGAGE OF DEPOSIT
DATE:
OMEGA WORLDWIDE, INC.
Mortgagor
ABN AMRO FACILITIES AUSTRALIA LIMITED
Mortgagee
<PAGE> 420
DEED OF MORTGAGE made at Sydney on 1998
BETWEEN OMEGA WORLDWIDE, INC. ("MORTGAGOR")
AND ABN AMRO FACILITIES AUSTRALIA LIMITED, ACN 001 035 543
("MORTGAGEE")
THIS DEED PROVIDES
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Mortgage words which are defined in the Debenture Stock
Trust Deed have the same meaning when used in this Mortgage and:
"DEBENTURE STOCK TRUST DEED" means the deed so entitled between
Premier Care Australia Pty Limited and the Mortgagee dated on or
about the date of this Mortgage.
"DEPOSIT ACCOUNT" means the account opened and maintained by the
Mortgagor with the Depositee and identified by the account name
"Omega Worldwide, Inc." and account number 86660127.
"DEPOSITED SUM" means the sum of $10,000,000 credited to the
Deposit Account on or prior to the date of this Mortgage and all
other money that is at any time during the currency of this
Mortgage deposited in or standing to the credit of the Deposit
Account.
"DEPOSITEE" means ABN AMRO N.V., Australian Branch or such other
person as the Mortgagee may approve.
"GUARANTEE" means the Deed of Guarantee and Indemnity dated on or
about the date of this Deed between the Mortgagor and the
Mortgagee.
"GUARANTEED MONEY" means all money which is or may become owing by
the Mortgagor under or by reason of the Guarantee and includes
amounts which:
(a) are liquidated or unliquidated;
(b) are present, prospective or contingent;
(c) are owing or become owing upon or after the date of
this Deed;
(d) relate to the payment of money or the performance or
omission of any act; or
(e) accrue as the result of any Event of Default,
and irrespective of:
<PAGE> 421
(f) whether the Mortgagor is liable or obligated solely, or
jointly or jointly and severally with another person;
2.
<PAGE> 422
(g) the circumstances in which the Mortgagee comes to be
owed the relevant sum, or in which the relevant sum
comes to be secured by this Deed, including the
assignment of any liability or obligation or of this
Deed; and
(h) the capacity in which the Mortgagor comes to owe such
liability (including acting as trustee for any person
or group of persons).
"ISOLATED" means, in respect of an account, free from any banker's
right to combine that account with any other account or right of
set-off not arising under an Insolvency Provision.
"MORTGAGED PROPERTY" means all of the Mortgagor's right, title and
interest, both present and future, of the Mortgagor in or to:
(1) the Deposited Sum;
(2) all accretions including interest from time
to time paid, payable or accrued thereon
whether credited to the Deposit Account or
not; and
(3) all books, records or documents of account
evidencing or recording the Deposited Sum.
"WITHDRAWAL RESTRICTION" means any flawed asset agreement relating
to the Deposit Account or term of the Deposit Account requiring
greater than 24 hours' notice for any withdrawal or imposing any
other condition upon withdrawal.
1.2 Interpretation
In this Mortgage:
(1) headings are for convenience only and do
not affect interpretation; and
unless the context indicates a contrary intention:
(2) the expression "PERSON" includes an
individual, the estate of an individual, a
body politic, a corporation, and a
statutory or other authority or association
(whether incorporated or unincorporated);
(3) a reference to any party includes that
party's executors, administrators,
successors, substitutes and assigns,
including any person taking by way of
novation and, in the case of a trustee
includes any substituted or additional
trustee;
(4) a reference to the Deposited Sum or the
Mortgaged Property includes any part of it;
(5) a reference to this Mortgage, to a
Transaction Document or to any
3.
<PAGE> 423
other document includes respectively this
Mortgage, the Transaction Document or that
other document as amended, varied, novated,
supplemented, ratified or replaced from
time to time;
(6) a reference to any legislation or to any
statutory provision includes any statutory
modification, rewrite or re-enactment or
any statutory
4.
<PAGE> 424
provision substituted therefor, and all
ordinances, by-laws, regulations and other
statutory instruments issued thereunder;
(7) words importing the singular include the
plural (and vice versa) and words denoting
a given gender include all other genders;
(8) a reference to a clause is a reference to
a clause of this Mortgage;
(9) where any word or phrase is given a defined
meaning, any other part of speech or
grammatical form in respect of that word or
phrase has a corresponding meaning;
(10) mentioning anything after "include",
"includes" or "including" does not limit
what else may be included; and
(11) the Mortgagor and the Mortgagee agree that
this Mortgage is a "Transaction Document"
and a "Collateral Security" as defined in
and for the purposes of the Debenture Stock
Trust Deed.
2. THE MORTGAGE
2.1 The Mortgage
By this Mortgage the Mortgagor transfers and assigns absolutely all
of the Mortgaged Property to the Mortgagee, as security for the
payment in full to the Mortgagee of all the Guaranteed Money,
subject to clause 2.2.
2.2 Discharge
Subject to clause 10.5, on the payment in full to the Mortgagee of
all the Guaranteed Money, the Mortgagee will, if requested by the
Mortgagor and at the Mortgagor's cost, execute and do all acts and
things as may be necessary to release and reassign the Mortgaged
Property to the Mortgagor.
2.3 Prospective Liability
For the purpose only of section 282(3) of the Corporations Law the
specified maximum amount of the prospective liability secured by
this Mortgage is $200,000,000. The nature of the prospective
liability is as shown on the notice lodged with this Mortgage with
the Australian Securities Commission. Nothing in this clause 2.3
will limit, or put the Mortgagee under any obligation to do any act
or thing so as to increase, the amount of the money secured by this
Mortgage.
2.4 Collateral To Debenture Stock Trust Deed
This Mortgage is collateral to and secures the same monies as are
secured by the Debenture Stock Trust Deed.
5.
<PAGE> 425
2.5 Limited Recourse
A liability arising under this Mortgage or the Guarantee is limited
to and can only be enforced against the Mortgagor to the extent to
which it can be satisfied out of the Mortgaged Property. This
limitation of the liability of the Mortgagor applies despite any
other provision of this Mortgage and extends to all liabilities and
obligations of the Mortgagor in any way connected with any
representation, warranty, conduct, omission, agreement or
transaction related to this Mortgage or the Guarantee.
The Mortgagee may not seek to recover any loss it may suffer as a
result of any failure of the Mortgagor to comply with its
obligations under this Mortgage or the Guarantee other than by
recourse to the Mortgaged Property. In particular, the Beneficiary
may not apply to bankrupt the Mortgagor, have the Mortgagor wound
up or prove in the winding up of the Mortgagor.
3. REPRESENTATIONS AND WARRANTIES
3.1 General Representations And Warranties
The Mortgagor represents and warrants to the Mortgagee:
(1) (GOOD TITLE): the Mortgagor has good right
to mortgage the Mortgaged Property in the
manner provided in this Mortgage and the
Mortgaged Property is absolutely free of
all Encumbrances and Withdrawal
Restrictions;
(2) (DEPOSIT ACCOUNT ISOLATED): the Deposit
Account is Isolated; and
(3) (STATUTES): the Mortgagor has complied with
all Statutes in relation to the Mortgaged
Property.
3.2 Representations and warranties repeated
Each representation and warranty in clause 3.1 will be repeated on
each day whilst any of the Guaranteed Money remains outstanding
(whether or not then due for payment) with reference to the facts
and circumstances then subsisting, as if made on each such day.
4. PROVISION OF INFORMATION
The Mortgagor will furnish to the Mortgagee promptly any
information regarding the Mortgaged Property as the Mortgagee from
time to time reasonably requires.
5. COVENANTS CONCERNING THE MORTGAGED PROPERTY
5.1 Restrictions in relation to the Mortgaged Property
6.
<PAGE> 426
The Mortgagor will not without the prior written consent of the
Mortgagee (which will not be unreasonably withheld) or as expressly
permitted in any other Transaction Document:
(1) (MAINTAIN DEPOSIT ACCOUNT): withdraw the
Deposited Sum, and the Mortgagor agrees
with the Mortgagee that it will hold any
part of the Deposited Sum withdrawn in
breach of this clause 5.1(a) on trust for
the Mortgagee;
(2) (NO ENCUMBRANCES): create, purport or
attempt to create or permit to exist:
7.
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(1) any Encumbrance however
ranking over the Mortgaged
Property; or
(2) any Withdrawal Restriction in
respect of the Deposit
Account;
(3) (NO SALE ETC): convey, assign, transfer or
otherwise dispose or part with possession
of or create, or permit to exist any other
interest in any or all of the Mortgaged
Property whilst the Mortgaged Property is
subject to this Mortgage, and the Mortgagor
agrees with the Mortgagee that any
purported assignee or transferee of the
Mortgaged Property taking in breach of this
clause 5.1 will do so subject to the terms
of this Mortgage;
(4) (NOT TO PREJUDICE): do or permit any act,
omission or thing whereby the Mortgaged
Property becomes or could be liable to
surrender, forfeiture or cancellation or
becomes prejudiced in any manner or the
value of this Mortgage as a security to the
Mortgagee becomes or could be materially
lessened; or
(5) (STEP): take any step towards doing any of
these things.
5.2 Protection Of Mortgaged Property
The Mortgagor will take or defend all such legal proceedings at the
direction of the Mortgagee but at the sole cost of the Mortgagor as
the Mortgagee considers necessary or desirable for the
preservation, protection or recovery of all or any part of the
Mortgaged Property.
6. EVENTS OF DEFAULT
If any Event of Default occurs and while it subsists, at the option
of the Mortgagee and notwithstanding any delay or previous waiver
of the right to exercise that option, the Guaranteed Money becomes
immediately due and payable on demand, and all Powers not
previously exercisable become exercisable.
7. POWERS ON DEFAULT
7.1 Powers On Default
Subject to clause 2.5, at any time after the Guaranteed Money has
become due and payable or an Event of Default has occurred, the
Mortgagee will be entitled to exercise any one or more of the
following powers without prejudice to any other right or remedy it
may have, as it in its absolute discretion thinks fit:
(1) (TO TAKE POSSESSION AND COLLECT): to take
possession or control of or make use of the
Mortgaged Property or relinquish such
possession or control;
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(2) (TO CONVERT TO MONEY): to convert,
liquidate and reduce the Mortgaged Property
into money;
(3) (TO APPROPRIATE MONEY): to appropriate,
set-off or otherwise deal with the
Mortgaged Property in or towards payment of
the Guaranteed Money and for that purpose
may make a demand upon the Depositee for
payment of the Deposited Sum;
(4) (TO ENGAGE): to engage consultants,
contractors, professional advisers, agents
and employees at such salaries or
remuneration as the Mortgagee thinks fit
and the Mortgagee may act upon any advice
given by that person;
(5) (TO INVEST PROCEEDS AGAINST CONTINGENCIES):
if any of the Guaranteed Money is
contingent, to invest, deposit or hold the
Mortgaged Property in a form or mode of
investment for the time being as the
Mortgagee in its absolute discretion thinks
fit, with like power to vary, transpose or
re-invest the investments or deposits from
time to time until such part of the
Guaranteed Money ceases to be contingent;
(6) (TO PERFORM CONTRACTS): to perform,
observe, carry out, enforce specific
performance of, exercise or refrain from
exercising, the Mortgagor's rights and
powers under, obtain the benefit of, and
vary or rescind all contracts and rights
forming part of the Mortgaged Property or
entered into in the exercise of any Power;
(7) (TO TAKE PROCEEDINGS): to institute,
conduct or defend any proceedings in law,
equity or bankruptcy, and to submit to
arbitration, mediation or conciliation, in
the name of the Mortgagor or otherwise and
on any terms, any proceeding, claim,
question or dispute in connection with the
Mortgaged Property or otherwise;
(8) (TO COMPROMISE): to make any settlement,
arrangement or compromise regarding any
action, proceeding or dispute arising in
connection with the Mortgaged Property, to
grant to any person involved time or other
indulgence, and to execute all related
releases or discharges as the Mortgagee
thinks fit;
(9) (TO OPERATE CREDIT ACCOUNTS): to operate to
the exclusion of the Mortgagor any credit
account comprising any part of the
Mortgaged Property whether alone or
jointly, and to withdraw any money to the
credit of that account;
(10) (TO DO ALL OTHER THINGS NECESSARY): to do
all things necessary to perform, observe
and fulfil any of the Mortgagor's covenants
contained in this Mortgage; and
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(11) (MORTGAGEE'S DISCRETION): to do all other
acts and things without limitation as the
Mortgagee thinks expedient.
7.2 Mortgagee may make good default
If the Mortgagor defaults in duly performing, observing and
fulfilling any of the Obligations, the Mortgagee may, without
prejudice to any other Power, do all things and pay all money
necessary or expedient in the opinion of the Mortgagee to make good
or to attempt to make good that default to the satisfaction of the
Mortgagee.
7.3 Notice For exercise Of Powers
(1) The Powers may be exercised by the
Mortgagee and the Receiver immediately on
or at any time after the Guaranteed Money
becomes payable or an Event of Default
occurs, without any notice or lapse of time
being necessary unless required by a law
which cannot be excluded or by any
inconsistent provision in this Mortgage.
(2) One day is fixed as the period for which:
(1) default must continue in the
payment of any part of the
Guaranteed Money, including
interest, before the Mortgagee
may serve any notice in
writing as required by any
Statute affecting the Powers;
and
(2) default must continue after
the service of notice before
any power of sale may be
exercised.
8. POWER OF ATTORNEY
8.1 Appointment
(1) The Mortgagor irrevocably appoints the
Mortgagee, each director, manager and
attorney from time to time of the
Mortgagee, severally, as attorney of the
Mortgagor, with power at any time after the
occurrence of an Event of Default to:
(1) do all acts which ought to be
done by the Mortgagor under
this Mortgage or to exercise
any Power;
(2) demand, sue for, recover and
receive the Mortgaged Property
from any person, in the name
of and on behalf of the
Mortgagor, or in the name of
the Mortgagee or an attorney
appointed under this Mortgage;
(3) take further action and to
execute further instruments
which are, or are in the
opinion of the Mortgagee,
either necessary to more
satisfactorily secure the
payment of the Guaranteed
Money or are expedient in
relation to the
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<PAGE> 430
Mortgaged Property; and
(4) appoint (and remove at will)
at any time any person(s) as a
substitute(s) for an attorney
or attorneys.
(2) The Mortgagor ratifies and confirms now and
for the future all actions lawfully
undertaken by or on behalf of its attorney
under this Power of Attorney.
(3) The Mortgagor declares that this Power of
Attorney will continue in force until all
actions taken under it have been completed,
notwithstanding the discharge of this
Mortgage or any of the agreements or
arrangements to which it refers.
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8.2 Appointment Not To Restrict Mortgagee
No appointment by the Mortgagee of a substitute or substitutes
under clause 8.1 will, unless the Mortgagee otherwise directs in
writing, in any way fetter or limit the powers of the Mortgagee or
any other substitute or substitutes.
9. APPLICATION OF MONEY
9.1 Priority Of Payments
All money received by the Mortgagee as a result of the exercise of
the Powers may be applied in the following order:
(1) (INCIDENTAL TO EXERCISE OF POWERS): in
payment of all costs, charges, expenses and
disbursements incurred in or incidental to
the exercise or attempted exercise of any of
the Powers;
(2) (OUTGOINGS): in payment of any other
outgoings as the Mortgagee thinks fit;
(3) (PAYMENT OF GUARANTEED MONEY): in payment of
the balance of the Guaranteed Money then
owing or contingently or prospectively
owing, whether or not due and payable;
(4) (SUBSEQUENT ENCUMBRANCES): in payment of
subsequent Encumbrances of which the
Mortgagee is aware in the order of their
priority; and
(5) (SURPLUS): the surplus (if any) belongs to
the Mortgagor but does not carry interest.
9.2 Money Received
In applying any money towards satisfaction of the Guaranteed Money,
the Mortgagor will be credited only with so much of the money
available for that purpose as will be actually received by the
Mortgagee and not required for whatever reason to be disgorged, any
credit to date from the time of receipt.
9.3 Application Of Payments Or Credits
Each of the Mortgagee has an absolute discretion to apply any
payment or credit received by it under this Mortgage in reduction
of any part or parts of the Guaranteed Money, whenever and on
whatever account it became secured, notwithstanding any principle
or presumption of law to the contrary or any direction given at the
time of receipt, and without the need to communicate its election
to any person.
9.4 Reliance On Certificate
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<PAGE> 432
In making any payment to any other Encumbrancee under clause 9.1,
the Mortgagee may rely on a certificate from that Encumbrancee as
to the amount secured, and is not bound to enquire as to the
accuracy of the certificate or whether the amount referred to is
validly secured by the Encumbrance.
10. LIABILITY AND RELEASE
10.1 Continuing obligation
This Mortgage constitutes a continuing obligation regardless of any
settlement of account, intervening payment, express or implied
revocation, or any other matter or thing. Without limiting the
generality of the foregoing, each indemnity in this Mortgage is a
separate additional and continuing obligation and will survive the
discharge of this Mortgage. Unless otherwise agreed, payment by the
Mortgagee will not be a pre-condition to liability under any
indemnity.
10.2 Personal liability
Notwithstanding any payout figure quoted or other form of account
stated by the Mortgagee, and notwithstanding the rule in Groongal
Pastoral Company Limited (In Liquidation) v. Falkiner (1924) 35 CLR
157, no grant of full or partial satisfaction of or discharge from
this Mortgage by the Mortgagee will release the Mortgagor from
personal liability under this Mortgage or under any Transaction
Document until all the Guaranteed Money has in fact been received
by the Mortgagee and is not liable to be disgorged for any reason,
notwithstanding that the quotation or statement of account has
arisen from the mistake, negligence, error of law or error of fact
of the Mortgagee, its servants or agents.
10.3 Settlement conditional
Any settlement or discharge between the Mortgagor and the Mortgagee
is conditional on any security or payment given or made to the
Mortgagee by the Mortgagor or any other person in relation to the
Obligations not being avoided, repaid or reduced by virtue of any
Insolvency Provision. If the security or payment is avoided, repaid
or reduced, the Mortgagee will be entitled to recover the value or
amount of such security or payment avoided, repaid or reduced from
the Mortgagor subsequently as if that settlement or discharge had
not occurred.
10.4 Mortgagor's liability not affected
This Mortgage and the liability of the Mortgagor under this
Mortgage will not be affected or discharged by any of the
following:
(1) (INDULGENCE): the granting to the Mortgagor
or to any other person of any time or other
indulgence or consideration;
(2) (TRANSACTION DOCUMENTS): the Mortgagee
failing or neglecting
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<PAGE> 433
to recover by the realisation of any
Transaction Document, other security or
otherwise any of the Guaranteed Money;
(3) (LACHES): any other laches, acquiescence,
delay, act, omission or mistake on the part
of the Mortgagee or any other person;
(4) (RELEASE): the release, discharge,
abandonment or transfer, whether wholly or
partially and with or without
consideration, of any Transaction Document,
other security, judgment or negotiable
instrument held from time to time or
recovered by the Mortgagee from or against
the Mortgagor or any other person; or
(5) (ANY OTHER THING): any other matter or
thing.
10.5 Release Of Mortgaged Property
The Mortgagee will be under no obligation to grant a release of the
Mortgaged Property from this Mortgage unless at the time the
release is to be provided, none of the Guaranteed Money is owing
(whether actually contingently or prospectively), none of the
Obligations remain to be performed and it is not reasonably
foreseeable that there could be any such money owing or Obligations
to be performed at a future time.
11. PROTECTION AND INDEMNITY
11.1 Waiver By Mortgagor
The Mortgagor waives in favour of the Mortgagee:
(1) all rights against the Mortgagee and any
other person, estate or assets as far as is
necessary to give effect to any provision
of this Mortgage;
(2) promptness and diligence on the part of the
Mortgagee, and any other requirement that
the Mortgagee take any action or exhaust
any right against any other person before
enforcing this Mortgage; and
(3) all rights inconsistent with the provisions
of this Mortgage, including any rights of
contribution or subrogation which the
Mortgagor might otherwise be entitled to
claim or enforce.
11.2 No liability for loss
The Mortgagee will not be liable or otherwise accountable for any
omission, delay, mistake, loss, or irregularity in or concerning
the exercise, attempted exercise, non-exercise or purported
exercise of any Power, except for actual fraud or wilful
misconduct.
11.3 No liability to account
14.
<PAGE> 434
The Mortgagee will not, by reason of the Mortgagee entering into
possession of the Mortgaged Property, be liable to account as
mortgagee or chargee in possession, or for anything except actual
receipts, or be liable for any loss on realisation, or for any
default, omission, delay or mistake for which a mortgagee or
chargee in possession might be liable.
11.4 No conflict
The Mortgagee may exercise any Power notwithstanding that the
exercise of that Power involves a conflict between any duty owed to
the Mortgagor by the Mortgagee and any duty owed by the Mortgagee
to any other person, or the interests of the Mortgagee. No contract
will be void or voidable by virtue of any such conflict of duty or
interest, nor will the Mortgagee be liable to account to the
Mortgagor or any other person for any money or property as a result
of such conflict.
11.5 No notice or enforcement
The Mortgagee need not give any notice of this Mortgage to the
Depositee or to any other person, or enforce payment of any money
payable to the Mortgagor, or realise any of the Mortgaged Property,
or take any steps or proceedings for that purpose.
11.6 Indemnity
The Mortgagor will on demand indemnify and keep the Mortgagee
indemnified in respect of all costs, expenses, liabilities and
losses incurred by the Mortgagee:
(1) in the exercise, attempted exercise or
non-exercise of any Power, including
(without limitation) those consequent on
any mistake, oversight, error of judgment
or want of prudence on the part of the
Mortgagee, unless the same is due to actual
fraud or wilful misconduct;
(2) as a consequence of the occurrence of any
Event of Default;
(3) as a consequence of any call made or any
other money payable or other liability
arising in relation to the Mortgaged
Property;
(4) by reason of this Mortgage; and
(5) in respect of any act or omission for which
the Mortgagee is exonerated by this
Mortgage,
and the Mortgagor will defend all actions, proceedings, claims or
demands brought by any person in relation to any matter the subject
of this indemnity.
11.7 Protection of persons dealing with Mortgagee
15.
<PAGE> 435
No person acquiring any money or asset from or paying or handing
over any money or asset to or otherwise dealing with the Mortgagee
or any attorney appointed under this Mortgage, or to whom is
tendered for registration an instrument executed by the Mortgagee
or any attorney appointed under this Mortgage will be:
(1) bound to inquire:
(1) whether any Event of Default
has occurred;
(2) whether any of the Guaranteed
Money is owing or payable;
(3) whether the attorney has been
properly appointed;
(4) as to the propriety or
regularity of the exercise or
purported exercise of any
Power; or
(5) as to any other matter or
thing;
(2) affected by actual or constructive notice
that any transaction, document or other
dealing is unnecessary or improper; or
(3) concerned to see to the application of any
money or asset, or be answerable or
accountable for any loss or misapplication,
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<PAGE> 436
and the irregular, improper or unnecessary exercise of any Power
will be, as regards the protection of any such person, deemed to be
authorised by the Mortgagor and valid.
12. PAYMENTS
12.1 Money repayable as agreed or on demand
Unless otherwise agreed in writing, the Guaranteed Money will be
payable by the Mortgagor to the Mortgagee in Australian dollars
immediately on demand by the Mortgagee.
12.2 Credit balances of other accounts
In determining the Guaranteed Money, no credit need be allowed by
the Mortgagee for any credit balance in any joint or other account
of the Mortgagor with the Mortgagee, or for any other money owing
by the Mortgagee to the Mortgagor.
12.3 Payment of interest
The Mortgagor will pay interest on the Guaranteed Money to the
Mortgagee or any Stockholder in accordance with any Transaction
Document and, in the absence of any relevant provision, to the
Mortgagee at the Specified Rate calculated on daily balances
computed from the time or respective times when the money becomes
owing to, or is paid by, the Mortgagee. Interest accrues daily, and
is payable on the earlier of a demand from the Mortgagee and the
last Banking Day of each calendar month, whilst the Guaranteed
Money remains outstanding.
12.4 Capitalisation of interest
The Mortgagee may capitalise any interest which has become due and
owing in accordance with any Transaction Document or in the absence
of any relevant provision, then at such periods of not less than
one calendar month and from such dates as the Mortgagee elects. The
accumulation of capitalised interest may continue until the
Guaranteed Money has been paid in full notwithstanding any
composition, compromise, judgment or order in respect of any person
or any other thing.
12.5 Merger
If the liability of the Mortgagor to pay to the Mortgagee any of
the Guaranteed Money becomes merged in any judgment or order, the
Mortgagor will, as an independent obligation, pay interest at the
rate which is the higher of that payable under this Mortgage and
that fixed by or payable under that judgment or order.
12.6 No deduction for Taxes and no set-off or counterclaim
Subject to any Transaction Document, all payments of Guaranteed
Money by the Mortgagor to the Mortgagee will be:
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(1) free of any set-off or counterclaim; and
(2) without deduction or withholding for any
present or future Taxes.
12.7 Currency conversion and indemnity
(1) If any amount is required to be paid in a
particular currency and the Mortgagee
receives payment in another currency, then
the Mortgagee may actually or notionally
convert the amount received into the
required currency at the spot rate which it
is or considers it would be able to obtain
in the market at the time following receipt
when it sees fit to make such conversion.
The Mortgagor will only satisfy its
obligation to pay in the required currency
to the extent of the amount actually or
notionally received after deducting the
costs of conversion.
(2) The Mortgagor agrees to indemnify the
Mortgagee for any deficiency which arises
for any reason between the amount actually
received pursuant to any judgment, court or
tribunal order or distribution under any
Insolvency Provision which takes into
account any currency conversion rate and the
amount which would be actually or notionally
received by the Mortgagee by applying the
conversion provided for in this clause.
13. EXPENSES, STAMP DUTIES AND REGISTRATION
13.1 Expenses
The Mortgagor on demand will reimburse the Mortgagee for, and keep
the Mortgagee indemnified against all expenses, including legal
fees, costs and disbursements (on a solicitor/own client basis)
incurred by the Mortgagee in connection with:
(1) (PREPARATION): the preparation, negotiation
and execution of this Mortgage and any
subsequent consent, agreement, waiver,
amendment to, or discharge of this Mortgage;
and
(2) (ENFORCEMENT): the exercise, enforcement,
preservation, or attempted exercise,
enforcement or preservation of any rights
under this Mortgage, including without
limitation any expenses incurred in the
evaluation of any matter of material
concern to the Mortgagee.
The Mortgagor will bear the cost of its compliance with this
Mortgage.
13.2 Stamp duties
(1) (PAYMENT OF ALL DUTIES): The Mortgagor will
pay all stamp duty, transaction,
registration and similar Taxes, including
fines and penalties, financial institutions
duty and debits tax which may be
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payable to or required to be paid by any
appropriate authority, or determined to be
payable in connection with the execution,
delivery, performance or enforcement of this
Mortgage or any payment, receipt or other
transaction contemplated by this Mortgage.
(2) (INDEMNITY): The Mortgagor will indemnify
the Mortgagee against any loss or liability
incurred or suffered by it as a result of
the delay or failure by the Mortgagor to pay
Taxes.
13.3 Registration
The Mortgagor will ensure that this Mortgage is registered in the
manner and within such time limits as may be prescribed by law, to
ensure the full efficacy of this Mortgage as a security to the
Mortgagee in all relevant jurisdictions.
14. GOVERNING LAW AND JURISDICTION
14.1 Governing law
This Mortgage is to be governed by and construed in accordance with
the laws of New South Wales.
14.2 Jurisdiction
(1) (ACCEPTANCE OF JURISDICTION): The Mortgagor
irrevocably submits to and accepts generally
and unconditionally the non-exclusive
jurisdiction of the courts and appellate
courts of New South Wales with respect to
any legal action or proceedings which may be
brought at any time relating in any way to
this Mortgage.
(2) (NO OBJECTION TO INCONVENIENT FORUM): The
Mortgagor irrevocably waives any objection
it may now or in the future have to the
venue of such action or proceedings, and any
claim it may now or in the future have that
that action or proceeding has been brought
in an inconvenient forum.
15. MISCELLANEOUS
15.1 Further assurance
The Mortgagor will, and will procure that, all persons having or
claiming any estate or interest in the Mortgaged Property from time
to time and at all times after the date of this Mortgage, on the
request of the Mortgagee and at the cost of the Mortgagor, make, do
and execute or cause to be made, done and executed all acts, deeds
and assurances for:
(1) more satisfactorily securing to the
Mortgagee the payment of the Guaranteed
Money;
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(1) assuring or more satisfactorily assuring the
Mortgaged Property to the Mortgagee, or as
the Mortgagee may direct; or
(2) facilitating the exercise of any Power.
In particular, whenever requested to do so by the Mortgagee, the
Mortgagor will execute in favour of the Mortgagee legal mortgages,
transfers, assignments or other assurances of the Mortgaged
Property in terms acceptable to the Mortgagee.
15.2 Certificate of Mortgagee
A certificate in writing signed by the Mortgagee or an officer of
the Mortgagee certifying the amount payable by the Mortgagor to the
Mortgagee or stating any other act, matter or thing
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relating to this Mortgage or any Transaction Document is conclusive
and binding on the Mortgagor in the absence of manifest error on
the face of the certificate.
15.3 Notices
Any notice or other communication served, given or made under or in
connection with this Mortgage:
(1) must be in writing in order to be valid;
(2) is sufficient if executed by the party
serving, giving or making the same or on its
behalf by any attorney, director, secretary,
other duly authorised officer or solicitor
of such party;
(3) will be deemed to have been duly served,
given or made in relation to a party if it
is delivered or posted by prepaid post to
the address, or sent by facsimile to the
number of that party set out in the
Transaction Document or notified in writing
by that party to the other parties from time
to time; and
(4) will be deemed to be served, given or made:
(1) (in the case of prepaid post)
on the fifth day after the
date of posting;
(2) (in the case of facsimile) on
receipt of a transmission
report confirming successful
transmission; and
(3) (in the case of delivery by
hand) on delivery.
15.4 Assignment
The Mortgagee may at any time assign or otherwise transfer all or
any part of its rights under this Mortgage, and may disclose to a
proposed assignee or transferee any information in the possession
of the Mortgagee relating to the Mortgagor. The Mortgagor cannot
assign any of its rights under this Mortgage without the prior
written consent of the Mortgagee.
15.5 No merger
Neither this Mortgage nor any of the Powers will merge or
prejudicially affect or be merged in or prejudicially affected by
and the Mortgagor's obligations under this Mortgage will not in any
way be abrogated or released by any other security, any judgment or
order, any contract, any cause of action or remedy, or any other
matter or thing at any time existing in respect of the Guaranteed
Money.
15.6 Severability of provisions
Any provision of this Mortgage which is illegal, void or
unenforceable will be ineffective
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to the extent only of that illegality, voidness or unenforceability
without invalidating the remaining provisions.
15.7 Powers cumulative
Each Power is cumulative and in addition to each other Power
available to the Mortgagee.
15.8 Waiver
A failure to exercise or enforce or a delay in exercising or
enforcing or the partial exercise or enforcement of any Power by
the Mortgagee will not in any way preclude, or operate as a waiver
of, any further exercise or enforcement of that or any other Power.
15.9 Consents
Any consent referred to in this Mortgage may be given or withheld
and may be given subject to any conditions, as the Mortgagee in its
absolute discretion, unless this Mortgage expressly provides
otherwise.
15.10 Written waiver and consent
Any waiver or consent given by the Mortgagee under this Mortgage
will only be effective and binding on the Mortgagee if it is given
or confirmed in writing.
15.11 Time of essence
Time is of the essence in respect of the Mortgagor's obligations
under this Mortgage.
15.12 Moratorium legislation
To the fullest extent permitted by law, the provisions of all
Statutes at any time operating directly or indirectly to lessen or
affect in favour of the Mortgagor any obligation under this
Mortgage, or to delay or otherwise prevent or prejudicially affect
the exercise of any Power, are expressly waived, negatived and
excluded.
15.13 Binding on each signatory
This Mortgage is binding on each of the signatories notwithstanding
that any one or more of the named parties does not execute this
Mortgage, that there is any invalidity, forgery or irregularity
touching any execution of this Mortgage, or that this Mortgage is
or becomes unenforceable, void or voidable against a named party.
15.14 Counterparts
This Mortgage may be executed in a number of counterparts, all of
which taken together will be deemed to constitute one and the same
document.
22.
<PAGE> 442
15.15 No representation by or reliance on Mortgagee
The Mortgagor does not enter into this Mortgage in reliance on or
as a result of any representation, promise, statement, conduct or
inducement by or on behalf of the Mortgagee or by or on behalf of
the Mortgagor otherwise than as set out in the Transaction
Documents.
EXECUTED as a deed.
SIGNED SEALED AND DELIVERED )
for and on behalf of OMEGA ) ......................................
WORLDWIDE, INC by ) (Signature)
)
its Attorney under a Power )
of Attorney dated and )
who declares that he has )
not received any notice of )
the revocation of such Power )
of Attorney in the presence of: )
...............................
(Signature of Witness)
...............................
(Name of Witness in Full)
SIGNED SEALED AND DELIVERED for )
and on behalf of ABN AMRO ) ......................................
FACILITIES AUSTRALIA LIMITED by ) (Signature)
)
its Attorney under a Power of )
Attorney dated and who declares )
that he has not received any )
notice of the revocation of such )
Power of Attorney in the )
presence of: )
...............................
(Signature of Witness)
...............................
(Name of Witness in Full)
23.
<PAGE> 443
TABLE OF CONTENTS
<TABLE>
<CAPTION>
CLAUSE PAGE
<S> <C> <C>
1. DEFINITIONS AND INTERPRETATION 1
1.1 DEFINITIONS 1
1.2 INTERPRETATION 2
2. THE MORTGAGE 3
2.1 THE MORTGAGE 3
2.2 DISCHARGE 3
2.3 PROSPECTIVE LIABILITY 3
2.4 COLLATERAL TO DEBENTURE STOCK TRUST DEED 3
2.5 LIMITED RECOURSE 4
3. REPRESENTATIONS AND WARRANTIES 4
3.1 GENERAL REPRESENTATIONS AND WARRANTIES 4
3.2 REPRESENTATIONS AND WARRANTIES REPEATED 4
4. PROVISION OF INFORMATION 4
5. COVENANTS CONCERNING THE MORTGAGED PROPERTY 4
5.1 RESTRICTIONS IN RELATION TO THE MORTGAGED PROPERTY 4
5.2 PROTECTION OF MORTGAGED PROPERTY 5
6. EVENTS OF DEFAULT 5
7. POWERS ON DEFAULT 5
7.1 POWERS ON DEFAULT 5
7.2 MORTGAGEE MAY MAKE GOOD DEFAULT 6
7.3 NOTICE FOR EXERCISE OF POWERS 7
8. POWER OF ATTORNEY 7
8.1 APPOINTMENT 7
8.2 APPOINTMENT NOT TO RESTRICT MORTGAGEE 8
9. APPLICATION OF MONEY 8
9.1 PRIORITY OF PAYMENTS 8
</TABLE>
(3)
<PAGE> 444
<TABLE>
<S> <C> <C>
9.2 MONEY RECEIVED 8
9.3 APPLICATION OF PAYMENTS OR CREDITS 8
9.4 RELIANCE ON CERTIFICATE 8
10. LIABILITY AND RELEASE 9
10.1 CONTINUING OBLIGATION 9
10.2 PERSONAL LIABILITY 9
10.3 SETTLEMENT CONDITIONAL 9
10.4 MORTGAGOR'S LIABILITY NOT AFFECTED 9
10.5 RELEASE OF MORTGAGED PROPERTY 10
11. PROTECTION AND INDEMNITY 10
11.1 WAIVER BY MORTGAGOR 10
11.2 NO LIABILITY FOR LOSS 10
11.3 NO LIABILITY TO ACCOUNT 10
11.4 NO CONFLICT 10
11.5 NO NOTICE OR ENFORCEMENT 11
11.6 INDEMNITY 11
11.7 PROTECTION OF PERSONS DEALING WITH MORTGAGEE 11
12. PAYMENTS 12
12.1 MONEY REPAYABLE AS AGREED OR ON DEMAND 12
12.2 CREDIT BALANCES OF OTHER ACCOUNTS 12
12.3 PAYMENT OF INTEREST 12
12.4 CAPITALISATION OF INTEREST 12
12.5 MERGER 12
12.6 NO DEDUCTION FOR TAXES AND NO SET-OFF OR COUNTERCLAIM 12
13
12.7 CURRENCY CONVERSION AND INDEMNITY 13
13. EXPENSES, STAMP DUTIES AND REGISTRATION 13
13.1 EXPENSES 13
13.2 STAMP DUTIES 13
13.3 REGISTRATION 14
14. GOVERNING LAW AND JURISDICTION 14
14.1 GOVERNING LAW 14
14.2 JURISDICTION 14
15. MISCELLANEOUS 14
</TABLE>
(4)
<PAGE> 445
<TABLE>
<S> <C> <C>
15.1 FURTHER ASSURANCE 14
15.2 CERTIFICATE OF MORTGAGEE 15
15.3 NOTICES 15
15.4 ASSIGNMENT 15
15.5 NO MERGER 15
15.6 SEVERABILITY OF PROVISIONS 16
15.7 POWERS CUMULATIVE 16
15.8 WAIVER 16
15.9 CONSENTS 16
15.10 WRITTEN WAIVER AND CONSENT 16
15.11 TIME OF ESSENCE 16
15.12 MORATORIUM LEGISLATION 16
15.13 BINDING ON EACH SIGNATORY 16
15.14 COUNTERPARTS 16
15.15 NO REPRESENTATION BY OR RELIANCE ON MORTGAGEE 17
</TABLE>
(5)
<PAGE> 446
TABLE OF CONTENTS
CLAUSE PAGE
(6)
<PAGE> 447
TABLE OF CONTENTS
CLAUSE PAGE
(7)
<PAGE> 448
MORTGAGE OF DEPOSIT
DATE:
PREMIER CARE AUSTRALIA PTY LIMITED
Mortgagor
ABN AMRO FACILITIES AUSTRALIA LIMITED
Mortgagee
<PAGE> 449
DEED OF MORTGAGE made at Sydney on 1998
BETWEEN PREMIER CARE AUSTRALIA PTY LIMITED, ACN 069 875 476
both in its personal capacity and in its capacity as
trustee of the ALUT Trust ("MORTGAGOR")
AND ABN AMRO FACILITIES AUSTRALIA LIMITED, ACN 001 035 543
("MORTGAGEE")
THIS DEED PROVIDES
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Mortgage words which are defined in the Debenture Stock
Trust Deed have the same meaning when used in this Mortgage and:
"ALUT TRUST" means the trust constituted by the Trust Deed.
"DEBENTURE STOCK TRUST DEED" means the deed so entitled between the
Mortgagor and the Mortgagee dated on or about the date of this
Mortgage.
"DEPOSIT ACCOUNT" means the account opened and maintained by the
Mortgagor with the Depositee and identified by the account name
"Principal Healthcare Finance (Australia) Pty Limited" and account
number 862321000165.
"DEPOSITED SUM" means the sum of $5,000,000 credited to the Deposit
Account on or prior to the date of this Mortgage and all other
money that is at any time during the currency of this Mortgage
deposited in or standing to the credit of the Deposit Account.
"DEPOSITEE" means ABN AMRO N.V., Australian Branch or such other
person as the Mortgagee may approve.
"ISOLATED" means, in respect of an account, free from any banker's
right to combine that account with any other account or right of
set-off not arising under an Insolvency Provision.
"MORTGAGED PROPERTY" means all of the Mortgagor's right, title and
interest, both present and future, of the Mortgagor and the ALUT
Trust in or to:
(1) the Deposited Sum;
(2) all accretions including interest from time
to time paid, payable or accrued thereon
whether credited to the Deposit Account or
not; and
(3) all books, records or documents of account
evidencing or recording the Deposited Sum.
1.
<PAGE> 450
"TRUST DEED" means the deed of trust dated 11 August 1995 between
the Mortgagor, Metlife Australia (Holdings) Pty Limited and FAI
Deposit Co. Pty Limited.
2.
<PAGE> 451
"WITHDRAWAL RESTRICTION" means any flawed asset agreement relating
to the Deposit Account or term of the Deposit Account requiring
greater than 24 hours' notice for any withdrawal or imposing any
other condition upon withdrawal.
1.2 Interpretation
In this Mortgage:
(1) headings are for convenience only and do
not affect interpretation; and
unless the context indicates a contrary intention:
(2) the expression "PERSON" includes an
individual, the estate of an individual, a
body politic, a corporation, and a
statutory or other authority or association
(whether incorporated or unincorporated);
(3) a reference to any party includes that
party's executors, administrators,
successors, substitutes and assigns,
including any person taking by way of
novation and, in the case of a trustee
includes any substituted or additional
trustee;
(4) a reference to the Deposited Sum or the
Mortgaged Property includes any part of it;
(5) a reference to this Mortgage, to a
Transaction Document or to any other
document includes respectively this
Mortgage, the Transaction Document or that
other document as amended, varied, novated,
supplemented, ratified or replaced from
time to time;
(6) a reference to any legislation or to any
statutory provision includes any statutory
modification, rewrite or re-enactment or
any statutory provision substituted
therefor, and all ordinances, by-laws,
regulations and other statutory instruments
issued thereunder;
(7) words importing the singular include the
plural (and vice versa) and words denoting
a given gender include all other genders;
(8) a reference to a clause is a reference to
a clause of this Mortgage;
(9) where any word or phrase is given a defined
meaning, any other part of speech or
grammatical form in respect of that word or
phrase has a corresponding meaning;
(10) mentioning anything after "include",
"includes" or "including" does not limit
what else may be included;
(11) the Mortgagor is liable under this Mortgage
in its personal capacity
3.
<PAGE> 452
and in its capacity as trustee of the ALUT
Trust, and every reference in this Mortgage
to any property, asset, undertaking, matter
or thing held by or in any way relating to
the Mortgagor will be construed as
extending to and, unless the context
indicates a contrary intention, binding on
every such property, asset, undertaking,
matter or thing
4.
<PAGE> 453
that at any time is held by or relates to
the Mortgagor either in its personal
capacity or as trustee of the ALUT Trust;
and
(l2) the Mortgagor and the Mortgagee agree that
this Mortgage is a "Transaction Document"
and a "Collateral Security" as defined in
and for the purposes of the Debenture Stock
Trust Deed.
2. THE MORTGAGE
2.1 The Mortgage
By this Mortgage the Mortgagor both in its personal capacity and as
trustee of the ALUT Trust transfers and assigns absolutely all of
the Mortgaged Property to the Mortgagee, as security for the due
and punctual performance, observance and fulfilment of all the
Obligations and the payment in full to the Mortgagee of all the
Secured Money, subject to clause 2.2.
2.2 Discharge
Subject to clause 10.5, on the due and punctual performance,
observance and fulfilment of the Obligations and the payment in
full to the Mortgagee of all the Secured Money, the Mortgagee will,
if requested by the Mortgagor and at the Mortgagor's cost, execute
and do all acts and things as may be necessary to release and
reassign the Mortgaged Property to the Mortgagor.
2.3 Prospective Liability
For the purpose only of section 282(3) of the Corporations Law the
specified maximum amount of the prospective liability secured by
this Mortgage is $200,000,000. The nature of the prospective
liability is as shown on the notice lodged with this Mortgage with
the Australian Securities Commission. Nothing in this clause 2.3
will limit, or put the Mortgagee under any obligation to do any act
or thing so as to increase, the amount of the money secured by this
Mortgage.
2.4 Collateral to Debenture Stock Trust Deed
This Mortgage is collateral to and secures the same monies as are
secured by the Debenture Stock Trust Deed.
3. Representations and Warranties
3.1 General Representations and Warranties
The Mortgagor represents and warrants to the Mortgagee:
(1) (GOOD TITLE): the Mortgagor has good right
to mortgage the Mortgaged Property in the
manner provided in this Mortgage as trustee
of the
5.
<PAGE> 454
ALUT Trust and the Mortgaged Property is
absolutely free of all Encumbrances and
Withdrawal Restrictions;
(2) (DEPOSIT ACCOUNT ISOLATED): the Deposit
Account is Isolated; and
6.
<PAGE> 455
(3) (STATUTES): the Mortgagor has complied with
all Statutes in relation to the Mortgaged
Property.
3.2 Representations and Warranties Repeated
Each representation and warranty in clause 3.1 will be repeated on
each day whilst any of the Secured Money remains outstanding
(whether or not then due for payment) with reference to the facts
and circumstances then subsisting, as if made on each such day.
4. Provision of Information
The Mortgagor will furnish to the Mortgagee promptly any
information regarding the Mortgaged Property as the Mortgagee from
time to time reasonably requires.
5. Covenants Concerning the Mortgaged Property
5.1 Restrictions in relation to the Mortgaged Property
The Mortgagor will not without the prior written consent of the
Mortgagee (which will not be unreasonably withheld) or as expressly
permitted in any other Transaction Document:
(1) (MAINTAIN DEPOSIT ACCOUNT): withdraw the
Deposited Sum, and the Mortgagor agrees
with the Mortgagee that it will hold any
part of the Deposited Sum withdrawn in
breach of this clause 5.1(a) on trust for
the Mortgagee;
(b) (NO ENCUMBRANCES): create, purport or
attempt to create or permit to exist:
(1) any Encumbrance however ranking
over the Mortgaged Property; or
(2) any Withdrawal Restriction in
respect of the Deposit Account;
(3) (NO SALE ETC): convey, assign, transfer or
otherwise dispose or part with possession
of or create, or permit to exist any other
interest in any or all of the Mortgaged
Property whilst the Mortgaged Property is
subject to this Mortgage, and the Mortgagor
agrees with the Mortgagee that any
purported assignee or transferee of the
Mortgaged Property taking in breach of this
clause 5.1 will do so subject to the terms
of this Mortgage;
(4) (NOT TO PREJUDICE): do or permit any act,
omission or thing whereby the Mortgaged
Property becomes or could be liable to
surrender, forfeiture or cancellation or
becomes prejudiced in any manner or the
value of this Mortgage as a security to the
Mortgagee becomes or could be materially
lessened; or
7.
<PAGE> 456
(5) (STEP): take any step towards doing any of
these things.
5.2 Protection of Mortgaged Property
The Mortgagor will take or defend all such legal proceedings at the
direction of the Mortgagee but at the sole cost of the Mortgagor as
the Mortgagee considers necessary or desirable for the
preservation, protection or recovery of all or any part of the
Mortgaged Property.
6. EVENTS OF DEFAULT
If any Event of Default occurs and while it subsists, at the option
of the Mortgagee and notwithstanding any delay or previous waiver
of the right to exercise that option, the Secured Money becomes
immediately due and payable on demand, and all Powers not
previously exercisable become exercisable.
7. POWERS ON DEFAULT
7.1 Powers on Default
At any time after the Secured Money has become due and payable or
an Event of Default has occurred, the Mortgagee will be entitled to
exercise any one or more of the following powers without prejudice
to any other right or remedy it may have, as it in its absolute
discretion thinks fit:
(1) (TO TAKE POSSESSION AND COLLECT): to take
possession or control of or make use of
the Mortgaged Property or relinquish such
possession or control;
(2) (TO CONVERT TO MONEY): to convert,
liquidate and reduce the Mortgaged Property
into money;
(3) (TO APPROPRIATE MONEY): to appropriate,
set-off or otherwise deal with the
Mortgaged Property in or towards payment of
the Secured Money and for that purpose may
make a demand upon the Depositee for
payment of the Deposited Sum;
(4) (TO ENGAGE): to engage consultants,
contractors, professional advisers, agents
and employees at such salaries or
remuneration as the Mortgagee thinks fit
and the Mortgagee may act upon any advice
given by that person;
(5) (TO INVEST PROCEEDS AGAINST CONTINGENCIES):
if any of the Secured Money is contingent,
to invest, deposit or hold the Mortgaged
Property in a form or mode of investment
for the time being as the Mortgagee in its
absolute discretion thinks fit, with like
power to
8.
<PAGE> 457
vary, transpose or re-invest the
investments or deposits from time to time
until such part of the Secured Money ceases
to be contingent;
(6) (TO PERFORM CONTRACTS): to perform,
observe, carry out, enforce specific
performance of, exercise or refrain from
exercising, the Mortgagor's rights and
powers under, obtain the benefit of, and
vary or rescind all contracts and rights
forming part of the Mortgaged Property or
entered into in the exercise of any Power;
(7) (TO TAKE PROCEEDINGS): to institute,
conduct or defend any proceedings in law,
equity or bankruptcy, and to submit to
arbitration, mediation or conciliation, in
the name of the Mortgagor or otherwise and
on any terms, any proceeding, claim,
question or dispute in connection with the
Mortgaged Property or otherwise;
(8) (TO COMPROMISE): to make any settlement,
arrangement or compromise regarding any
action, proceeding or dispute arising in
connection with the Mortgaged Property, to
grant to any person involved time or other
indulgence, and to execute all related
releases or discharges as the Mortgagee
thinks fit;
(9) (TO OPERATE CREDIT ACCOUNTS): to operate to
the exclusion of the Mortgagor any credit
account comprising any part of the
Mortgaged Property whether alone or
jointly, and to withdraw any money to the
credit of that account;
(10) (TO DO ALL OTHER THINGS NECESSARY): to do
all things necessary to perform, observe
and fulfil any of the Mortgagor's covenants
contained in this Mortgage; and
(11) (MORTGAGEE'S DISCRETION): to do all other
acts and things without limitation as the
Mortgagee thinks expedient.
7.2 Mortgagee may make good default
If the Mortgagor defaults in duly performing, observing and
fulfilling any of the Obligations, the Mortgagee may, without
prejudice to any other Power, do all things and pay all money
necessary or expedient in the opinion of the Mortgagee to make good
or to attempt to make good that default to the satisfaction of the
Mortgagee.
7.3 Notice for exercise of Powers
(1) The Powers may be exercised by the
Mortgagee and the Receiver immediately on
or at any time after the Secured Money
becomes payable or an Event of Default
occurs, without any notice or lapse of time
being necessary unless required by a law
which cannot be excluded or by any
inconsistent provision in this Mortgage.
9.
<PAGE> 458
(2) One day is fixed as the period for which:
(1) default must continue in the
performance, observance and
fulfilment of the whole or any
part of the Obligations, or in
the payment of any part of the
Secured Money, including
interest, before the Mortgagee
may serve any notice in
writing as required by any
Statute affecting the Powers;
and
(2) default must continue after
the service of notice before
any power of sale may be
exercised.
8. POWER OF ATTORNEY
8.1 Appointment
(1) The Mortgagor irrevocably appoints the
Mortgagee, each director, manager and
attorney from time to time of the
Mortgagee, severally, as attorney of the
Mortgagor, with power at any time after the
occurrence of an Event of Default to:
(1) do all acts which ought to be
done by the Mortgagor under
this Mortgage or to exercise
any Power;
(2) demand, sue for, recover and
receive the Mortgaged Property
from any person, in the name
of and on behalf of the
Mortgagor, or in the name of
the Mortgagee or an attorney
appointed under this Mortgage;
(3) take further action and to
execute further instruments
which are, or are in the
opinion of the Mortgagee,
either necessary to more
satisfactorily secure the
payment of the Secured Money
or are expedient in relation
to the Mortgaged Property; and
(4) appoint (and remove at will)
at any time any person(s) as a
substitute(s) for an attorney
or attorneys.
(2) The Mortgagor ratifies and confirms now and
for the future all actions lawfully
undertaken by or on behalf of its attorney
under this Power of Attorney.
(3) The Mortgagor declares that this Power of
Attorney will continue in force until all
actions taken under it have been completed,
notwithstanding the discharge of this
Mortgage or any of the agreements or
arrangements to which it refers.
8.2 Appointment not to restrict Mortgagee
No appointment by the Mortgagee of a substitute or substitutes
under clause 8.1 will,
10.
<PAGE> 459
unless the Mortgagee otherwise directs in writing, in any way
fetter or limit the powers of the Mortgagee or any other substitute
or substitutes.
9. APPLICATION OF MONEY
9.1 Priority of payments
All money received by the Mortgagee as a result of the exercise of
the Powers may be applied in the following order:
(1) (INCIDENTAL TO EXERCISE OF POWERS): in
payment of all costs, charges, expenses and
disbursements incurred in or incidental to
the exercise or attempted exercise of any
of the Powers;
(2) (OUTGOINGS): in payment of any other
outgoings as the Mortgagee thinks fit;
11.
<PAGE> 460
(3) (PAYMENT OF SECURED MONEY): in payment of
the balance of the Secured Money then owing
or contingently or prospectively owing,
whether or not due and payable;
(4) (SUBSEQUENT ENCUMBRANCES): in payment of
subsequent Encumbrances of which the
Mortgagee is aware in the order of their
priority; and
(5) (SURPLUS): the surplus (if any) belongs to
the Mortgagor but does not carry interest.
9.2 Money received
In applying any money towards satisfaction of the Secured Money,
the Mortgagor will be credited only with so much of the money
available for that purpose as will be actually received by the
Mortgagee and not required for whatever reason to be disgorged, any
credit to date from the time of receipt.
9.3 Application of payments or credits
Each of the Mortgagee has an absolute discretion to apply any
payment or credit received by it under this Mortgage in reduction
of any part or parts of the Secured Money, whenever and on whatever
account it became secured, notwithstanding any principle or
presumption of law to the contrary or any direction given at the
time of receipt, and without the need to communicate its election
to any person.
9.4 Reliance on certificate
In making any payment to any other Encumbrancee under clause 9.1,
the Mortgagee may rely on a certificate from that Encumbrancee as
to the amount secured, and is not bound to enquire as to the
accuracy of the certificate or whether the amount referred to is
validly secured by the Encumbrance.
10. LIABILITY AND RELEASE
10.1 Continuing obligation
This Mortgage constitutes a continuing obligation regardless of any
settlement of account, intervening payment, express or implied
revocation, or any other matter or thing. Without limiting the
generality of the foregoing, each indemnity in this Mortgage is a
separate additional and continuing obligation and will survive the
discharge of this Mortgage. Unless otherwise agreed, payment by the
Mortgagee will not be a pre-condition to liability under any
indemnity.
10.2 Personal liability
Notwithstanding any payout figure quoted or other form of account
stated by the
12.
<PAGE> 461
Mortgagee, and notwithstanding the rule in Groongal Pastoral
Company Limited (In Liquidation) v. Falkiner (1924) 35 CLR 157, no
grant of full or partial satisfaction of or discharge from this
Mortgage by the Mortgagee will release the Mortgagor from personal
liability under this Mortgage or under any Transaction Document
until all the Secured Money has in fact been received by the
Mortgagee and is not liable to be disgorged for any reason,
notwithstanding
13.
<PAGE> 462
that the quotation or statement of account has arisen from the
mistake, negligence, error of law or error of fact of the
Mortgagee, its servants or agents.
10.3 Settlement conditional
Any settlement or discharge between the Mortgagor and the Mortgagee
is conditional on any security or payment given or made to the
Mortgagee by the Mortgagor or any other person in relation to the
Obligations not being avoided, repaid or reduced by virtue of any
Insolvency Provision. If the security or payment is avoided, repaid
or reduced, the Mortgagee will be entitled to recover the value or
amount of such security or payment avoided, repaid or reduced from
the Mortgagor subsequently as if that settlement or discharge had
not occurred.
10.4 Mortgagor's liability not affected
This Mortgage and the liability of the Mortgagor under this
Mortgage will not be affected or discharged by any of the
following:
(1) (INDULGENCE): the granting to the
Mortgagor or to any other person of any
time or other indulgence or consideration;
(2) (TRANSACTION DOCUMENTS): the Mortgagee
failing or neglecting to recover by the
realisation of any Transaction Document,
other security or otherwise any of the
Secured Money;
(3) (LACHES): any other laches, acquiescence,
delay, act, omission or mistake on the part
of the Mortgagee or any other person;
(4) (RELEASE): the release, discharge,
abandonment or transfer, whether wholly or
partially and with or without
consideration, of any Transaction Document,
other security, judgment or negotiable
instrument held from time to time or
recovered by the Mortgagee from or against
the Mortgagor or any other person; or
(5) (ANY OTHER THING): any other matter or
thing.
10.5 Release of Mortgaged Property
The Mortgagee will be under no obligation to grant a release of the
Mortgaged Property from this Mortgage unless at the time the
release is to be provided, none of the Secured Money is owing
(whether actually contingently or prospectively), none of the
Obligations remain to be performed and it is not reasonably
foreseeable that there could be any such money owing or Obligations
to be performed at a future time.
11. PROTECTION AND INDEMNITY
11.1 Waiver by Mortgagor
14.
<PAGE> 463
The Mortgagor waives in favour of the Mortgagee:
(1) all rights against the Mortgagee and any
other person, estate or assets as far as is
necessary to give effect to any provision
of this Mortgage;
(2) promptness and diligence on the part of the
Mortgagee, and any other requirement that
the Mortgagee take any action or exhaust
any right against any other person before
enforcing this Mortgage; and
(3) all rights inconsistent with the provisions
of this Mortgage, including any rights of
contribution or subrogation which the
Mortgagor might otherwise be entitled to
claim or enforce.
11.2 No liability for loss
The Mortgagee will not be liable or otherwise accountable for any
omission, delay, mistake, loss, or irregularity in or concerning
the exercise, attempted exercise, non-exercise or purported
exercise of any Power, except for actual fraud or wilful
misconduct.
11.3 No liability to account
The Mortgagee will not, by reason of the Mortgagee entering into
possession of the Mortgaged Property, be liable to account as
mortgagee or chargee in possession, or for anything except actual
receipts, or be liable for any loss on realisation, or for any
default, omission, delay or mistake for which a mortgagee or
chargee in possession might be liable.
11.4 No conflict
The Mortgagee may exercise any Power notwithstanding that the
exercise of that Power involves a conflict between any duty owed to
the Mortgagor by the Mortgagee and any duty owed by the Mortgagee
to any other person, or the interests of the Mortgagee. No contract
will be void or voidable by virtue of any such conflict of duty or
interest, nor will the Mortgagee be liable to account to the
Mortgagor or any other person for any money or property as a result
of such conflict.
11.5 No notice or enforcement
The Mortgagee need not give any notice of this Mortgage to the
Depositee or to any other person, or enforce payment of any money
payable to the Mortgagor, or realise any of the Mortgaged Property,
or take any steps or proceedings for that purpose.
11.6 Indemnity
The Mortgagor will on demand indemnify and keep the Mortgagee
indemnified in respect of all costs, expenses, liabilities and
losses incurred by the Mortgagee:
15.
<PAGE> 464
(1) in the exercise, attempted exercise or
non-exercise of any Power, including
(without limitation) those consequent on
any mistake, oversight, error of judgment
or want of prudence on the part of the
Mortgagee, unless the same is due to actual
fraud or wilful misconduct;
(2) as a consequence of the occurrence of any
Event of Default;
(3) as a consequence of any call made or any
other money payable or other liability
arising in relation to the Mortgaged
Property;
(4) by reason of this Mortgage; and
(5) in respect of any act or omission for
which the Mortgagee is exonerated by this
Mortgage,
and the Mortgagor will defend all actions, proceedings, claims or
demands brought by any person in relation to any matter the subject
of this indemnity.
11.7 Protection of persons dealing with Mortgagee
No person acquiring any money or asset from or paying or handing
over any money or asset to or otherwise dealing with the Mortgagee
or any attorney appointed under this Mortgage, or to whom is
tendered for registration an instrument executed by the Mortgagee
or any attorney appointed under this Mortgage will be:
(1) bound to inquire:
(1) whether any Event of Default has
occurred;
(2) whether any of the Secured Money is
owing or payable;
(3) whether the attorney has been
properly appointed;
(4) as to the propriety or regularity of
the exercise or purported
exercise of any Power; or
(5) as to any other matter or thing;
(2) affected by actual or constructive notice
that any transaction, document or other
dealing is unnecessary or improper; or
(3) concerned to see to the application of any
money or asset, or be answerable or
accountable for any loss or misapplication,
and the irregular, improper or unnecessary exercise of any Power
will be, as regards the protection of any such person, deemed to be
authorised by the Mortgagor and valid.
12. PAYMENTS
12.1 Money repayable as agreed or on demand
16.
<PAGE> 465
Unless otherwise agreed in writing, the Secured Money will be
payable by the Mortgagor to the Mortgagee in Australian dollars
immediately on demand by the Mortgagee.
12.2 Credit balances of other accounts
In determining the Secured Money, no credit need be allowed by the
Mortgagee for any credit balance in any joint or other account of
the Mortgagor with the Mortgagee, or for any other money owing by
the Mortgagee to the Mortgagor.
12.3 Payment of interest
The Mortgagor will pay interest on the Secured Money to the
Mortgagee or any Stockholder in accordance with any Transaction
Document and, in the absence of any relevant provision, to the
Mortgagee at the Specified Rate calculated on daily balances
computed from the time or respective times when the money becomes
owing to, or is paid by, the Mortgagee. Interest accrues daily, and
is payable on the earlier of a demand from the Mortgagee and the
last Banking Day of each calendar month, whilst the Secured Money
remains outstanding.
12.4 Capitalisation of interest
The Mortgagee may capitalise any interest which has become due and
owing in accordance with any Transaction Document or in the absence
of any relevant provision, then at such periods of not less than
one calendar month and from such dates as the Mortgagee elects. The
accumulation of capitalised interest may continue until the Secured
Money has been paid in full notwithstanding any composition,
compromise, judgment or order in respect of any person or any other
thing.
12.5 Merger
If the liability of the Mortgagor to pay to the Mortgagee any of
the Secured Money becomes merged in any judgment or order, the
Mortgagor will, as an independent obligation, pay interest at the
rate which is the higher of that payable under this Mortgage and
that fixed by or payable under that judgment or order.
12.6 No deduction for Taxes and no set-off or counterclaim
Subject to any Transaction Document, all payments of Secured Money
by the Mortgagor to the Mortgagee will be:
(1) free of any set-off or counterclaim; and
(2) without deduction or withholding for any
present or future Taxes.
12.7 Mutual accounts
The Mortgagee may without prior notice:
17.
<PAGE> 466
(1) apply any credit balance (whether or not
then due) to which the Mortgagor is at any
time entitled on any account and in any
currency at any office of the Mortgagee in
or towards satisfaction of any sum then due
and unpaid from the Mortgagor to the
Mortgagee; and
(2) set-off any amount owing by the Mortgagor,
whether actual, contingent or prospective,
and on any account, against any liability,
whether actual, contingent or prospective
of the Mortgagee to the Mortgagor on any
other account.
The Mortgagee may effect such currency exchanges as it considers
appropriate in the exercise of any of its rights under this clause.
12.8 Currancy conversion and indemnity
(1) If any amount is required to be paid in a
particular currency and the Mortgagee
receives payment in another currency, then
the Mortgagee may actually or notionally
convert the amount received into the
required currency at the spot rate which it
is or considers it would be able to obtain
in the market at the time following receipt
when it sees fit to make such conversion.
The Mortgagor will only satisfy its
obligation to pay in the required currency
to the extent of the amount actually or
notionally received after deducting the
costs of conversion.
(2) The Mortgagor agrees to indemnify the
Mortgagee for any deficiency which arises
for any reason between the amount actually
received pursuant to any judgment, court or
tribunal order or distribution under any
Insolvency Provision which takes into
account any currency conversion rate and
the amount which would be actually or
notionally received by the Mortgagee by
applying the conversion provided for in
this clause.
13. EXPENSES, STAMP DUTIES AND REGISTRATION
13.1 Expenses
The Mortgagor on demand will reimburse the Mortgagee for, and keep
the Mortgagee indemnified against all expenses, including legal
fees, costs and disbursements (on a solicitor/own client basis)
incurred by the Mortgagee in connection with:
(1) (PREPARATION): the preparation,
negotiation and execution of this
Mortgage and any subsequent consent,
agreement, waiver, amendment to, or
discharge of this Mortgage; and
(2) (ENFORCEMENT): the exercise, enforcement,
preservation, or attempted exercise,
enforcement or preservation of any rights
under this Mortgage, including without
limitation any expenses incurred in the
18.
<PAGE> 467
evaluation of any matter of material
concern to the Mortgagee.
The Mortgagor will bear the cost of its compliance with this
Mortgage.
13.2 Stamp duties
(1) (PAYMENT OF ALL DUTIES): The Mortgagor will
pay all stamp duty, transaction,
registration and similar Taxes, including
fines and penalties, financial institutions
duty and debits tax which may be payable to
or required to be paid by any appropriate
authority, or determined to be payable in
connection with the execution, delivery,
performance or enforcement of this Mortgage
or any payment, receipt or other
transaction contemplated by this Mortgage.
(2) (INDEMNITY): The Mortgagor will indemnify
the Mortgagee against any loss or liability
incurred or suffered by it as a result of
the delay or failure by the Mortgagor to
pay Taxes.
13.3 Registration
The Mortgagor will ensure that this Mortgage is registered in the
manner and within such time limits as may be prescribed by law, to
ensure the full efficacy of this Mortgage as a security to the
Mortgagee in all relevant jurisdictions.
14. GOVERNING LAW AND JURISDICTION
14.1 Governing law
This Mortgage is to be governed by and construed in accordance with
the laws of New South Wales.
14.2 Jurisdiction
(1) (ACCEPTANCE OF JURISDICTION): The Mortgagor
irrevocably submits to and accepts
generally and unconditionally the
non-exclusive jurisdiction of the courts
and appellate courts of New South Wales
with respect to any legal action or
proceedings which may be brought at any
time relating in any way to this Mortgage.
(2) (NO OBJECTION TO INCONVENIENT FORUM): The
Mortgagor irrevocably waives any objection
it may now or in the future have to the
venue of such action or proceedings, and
any claim it may now or in the future have
that that action or proceeding has been
brought in an inconvenient forum.
15. MISCELLANEOUS
15.1 Further assurance
19.
<PAGE> 468
The Mortgagor will, and will procure that, all persons having or
claiming any estate or interest in the Mortgaged Property from time
to time and at all times after the date of this Mortgage, on the
request of the Mortgagee and at the cost of the Mortgagor, make, do
and execute or cause to be made, done and executed all acts, deeds
and assurances for:
(1) more satisfactorily securing to the
Mortgagee the payment of the Secured Money;
(2) assuring or more satisfactorily assuring
the Mortgaged Property to the Mortgagee, or
as the Mortgagee may direct; or
(3) facilitating the exercise of any Power.
In particular, whenever requested to do so by the Mortgagee, the
Mortgagor will execute in favour of the Mortgagee legal mortgages,
transfers, assignments or other assurances of the Mortgaged
Property in terms acceptable to the Mortgagee.
15.2 Certificate Of Mortgagee
A certificate in writing signed by the Mortgagee or an officer of
the Mortgagee certifying the amount payable by the Mortgagor to the
Mortgagee or stating any other act, matter or thing relating to
this Mortgage or any Transaction Document is conclusive and binding
on the Mortgagor in the absence of manifest error on the face of
the certificate.
15.3 Notices
Any notice or other communication served, given or made under or in
connection with this Mortgage:
(1) must be in writing in order to be valid;
(2) is sufficient if executed by the party
serving, giving or making the same or on
its behalf by any attorney, director,
secretary, other duly authorised officer or
solicitor of such party;
(3) will be deemed to have been duly served,
given or made in relation to a party if it
is delivered or posted by prepaid post to
the address, or sent by facsimile to the
number of that party set out in the
Transaction Document or notified in writing
by that party to the other parties from
time to time; and
(4) will be deemed to be served, given or made:
(1) (in the case of prepaid post)
on the fifth day after the
date of posting;
(2) (in the case of facsimile) on
receipt of a transmission
report
20.
<PAGE> 469
confirming successful
transmission; and
(3) (in the case of delivery by
hand) on delivery.
15.4 Assignment
The Mortgagee may at any time assign or otherwise transfer all or
any part of its rights under this Mortgage, and may disclose to a
proposed assignee or transferee any information in the possession
of the Mortgagee relating to the Mortgagor. The Mortgagor cannot
assign any of its rights under this Mortgage without the prior
written consent of the Mortgagee.
15.5 No merger
Neither this Mortgage nor any of the Powers will merge or
prejudicially affect or be merged in or prejudicially affected by
and the Mortgagor's obligations under this Mortgage will not in any
way be abrogated or released by any other security, any judgment or
order, any contract, any cause of action or remedy, or any other
matter or thing at any time existing in respect of the Secured
Money.
15.6 Severability Of provisions
Any provision of this Mortgage which is illegal, void or
unenforceable will be ineffective to the extent only of that
illegality, voidness or unenforceability without invalidating the
remaining provisions.
15.7 Powers cumulative
Each Power is cumulative and in addition to each other Power
available to the Mortgagee.
15.8 Waiver
A failure to exercise or enforce or a delay in exercising or
enforcing or the partial exercise or enforcement of any Power by
the Mortgagee will not in any way preclude, or operate as a waiver
of, any further exercise or enforcement of that or any other Power.
15.9 Consents
Any consent referred to in this Mortgage may be given or withheld
and may be given subject to any conditions, as the Mortgagee in its
absolute discretion, unless this Mortgage expressly provides
otherwise.
15.10 Written waiver and consent
Any waiver or consent given by the Mortgagee under this Mortgage
will only be effective and binding on the Mortgagee if it is given
or confirmed in writing.
15.11 Time of essence
21.
<PAGE> 470
Time is of the essence in respect of the Mortgagor's obligations
under this Mortgage.
15.12 Moratorium legislation
To the fullest extent permitted by law, the provisions of all
Statutes at any time operating directly or indirectly to lessen or
affect in favour of the Mortgagor any obligation under this
Mortgage, or to delay or otherwise prevent or prejudicially affect
the exercise of any Power, are expressly waived, negatived and
excluded.
15.13 Binding on each signatory
This Mortgage is binding on each of the signatories notwithstanding
that any one or more of the named parties does not execute this
Mortgage, that there is any invalidity, forgery or irregularity
touching any execution of this Mortgage, or that this Mortgage is
or becomes unenforceable, void or voidable against a named party.
15.14 Counterparts
This Mortgage may be executed in a number of counterparts, all of
which taken together will be deemed to constitute one and the same
document.
15.15 No representation by or reliance on mortgagee
The Mortgagor does not enter into this Mortgage in reliance on or
as a result of any representation, promise, statement, conduct or
inducement by or on behalf of the Mortgagee or by or on behalf of
the Mortgagor otherwise than as set out in the Transaction
Documents.
22.
<PAGE> 471
EXECUTED as a deed. .........................
(Signature)
SIGNED SEALED AND DELIVERED )
for and on behalf of PREMIER CARE )
AUSTRALIA PTY LIMITED by )
)
its Attorney under a Power of Attorney )
dated and who declares that he has )
not received any notice of the revocation of )
such Power of Attorney in the presence of: )
...........................................
(Signature of Witness)
...........................................
(Name of Witness in Full)
........................
(Signature)
SIGNED SEALED AND DELIVERED )
for and on behalf of ABN AMRO )
FACILITIES AUSTRALIA LIMITED by )
)
its Attorney under a Power of Attorney )
dated )
and who declares that he has not received )
any notice of the revocation of such Power )
of Attorney in the presence of: )
...........................................
(Signature of Witness)
...........................................
(Name of Witness in Full)
23.
<PAGE> 472
TABLE OF CONTENTS
<TABLE>
<CAPTION>
CLAUSE PAGE
<S> <C> <C>
1. DEFINITIONS AND INTERPRETATION 1
1.1 DEFINITIONS 1
1.2 INTERPRETATION 2
2. THE MORTGAGE 3
2.1 THE MORTGAGE 3
2.2 DISCHARGE 3
2.3 PROSPECTIVE LIABILITY 3
2.4 COLLATERAL TO DEBENTURE STOCK TRUST DEED 3
3. REPRESENTATIONS AND WARRANTIES 3
3.1 GENERAL REPRESENTATIONS AND WARRANTIES 3
3.2 REPRESENTATIONS AND WARRANTIES REPEATED 4
4. PROVISION OF INFORMATION 4
5. COVENANTS CONCERNING THE MORTGAGED PROPERTY 4
5.1 RESTRICTIONS IN RELATION TO THE MORTGAGED PROPERTY 4
5.2 PROTECTION OF MORTGAGED PROPERTY 5
6. EVENTS OF DEFAULT 5
7. POWERS ON DEFAULT 5
7.1 POWERS ON DEFAULT 5
7.2 MORTGAGEE MAY MAKE GOOD DEFAULT 6
7.3 NOTICE FOR EXERCISE OF POWERS 6
8. POWER OF ATTORNEY 7
8.1 APPOINTMENT 7
8.2 APPOINTMENT NOT TO RESTRICT MORTGAGEE 7
9. APPLICATION OF MONEY 7
9.1 PRIORITY OF PAYMENTS 7
9.2 MONEY RECEIVED 8
</TABLE>
(2)
<PAGE> 473
<TABLE>
<S> <C> <C>
9.3 APPLICATION OF PAYMENTS OR CREDITS 8
9.4 RELIANCE ON CERTIFICATE 8
10. LIABILITY AND RELEASE 8
10.1 CONTINUING OBLIGATION 8
10.2 PERSONAL LIABILITY 8
10.3 SETTLEMENT CONDITIONAL 9
10.4 MORTGAGOR'S LIABILITY NOT AFFECTED 9
10.5 RELEASE OF MORTGAGED PROPERTY 9
11. PROTECTION AND INDEMNITY 9
11.1 WAIVER BY MORTGAGOR 9
11.2 NO LIABILITY FOR LOSS 10
11.3 NO LIABILITY TO ACCOUNT 10
11.4 NO CONFLICT 10
11.5 NO NOTICE OR ENFORCEMENT 10
11.6 INDEMNITY 10
11.7 PROTECTION OF PERSONS DEALING WITH MORTGAGEE 11
12. PAYMENTS 11
12.1 MONEY REPAYABLE AS AGREED OR ON DEMAND 11
12.2 CREDIT BALANCES OF OTHER ACCOUNTS 11
12.3 PAYMENT OF INTEREST 12
12.4 CAPITALISATION OF INTEREST 12
12.5 MERGER 12
12.6 NO DEDUCTION FOR TAXES AND NO SET-OFF OR COUNTERCLAIM 12
12.7 MUTUAL ACCOUNTS 12
12.8 CURRENCY CONVERSION AND INDEMNITY 13
13. EXPENSES, STAMP DUTIES AND REGISTRATION 13
13.1 EXPENSES 13
13.2 STAMP DUTIES 13
13.3 REGISTRATION 14
14. GOVERNING LAW AND JURISDICTION 14
14.1 GOVERNING LAW 14
14.2 JURISDICTION 14
15. MISCELLANEOUS 14
15.1 FURTHER ASSURANCE 14
</TABLE>
(3)
(3)
<PAGE> 474
<TABLE>
<S> <C> <C>
15.2 CERTIFICATE OF MORTGAGEE 14
15.3 NOTICES 15
15.4 ASSIGNMENT 15
15.5 NO MERGER 15
15.6 SEVERABILITY OF PROVISIONS 15
15.7 POWERS CUMULATIVE 16
15.8 WAIVER 16
15.9 CONSENTS 16
15.10 WRITTEN WAIVER AND CONSENT 16
15.11 TIME OF ESSENCE 16
15.12 MORATORIUM LEGISLATION 16
15.13 BINDING ON EACH SIGNATORY 16
15.14 COUNTERPARTS 16
15.15 NO REPRESENTATION BY OR RELIANCE ON MORTGAGEE 16
</TABLE>
(4)
<PAGE> 475
TABLE OF CONTENTS
CLAUSE PAGE
(5)
<PAGE> 476
TABLE OF CONTENTS
CLAUSE PAGE
(6)
<PAGE> 477
THIS IS THE ANNEXURE "B" REFERRED TO IN THE MORTGAGE DATED [ ] 1998 BETWEEN
PREMIER CARE AUSTRALIA PTY LIMITED, ACN 069 875 476 AS MORTGAGOR AND ABN AMRO
FACILITIES AUSTRALIA LIMITED, ACN 001 035 543 AS MORTGAGEE
- --------------------------------------------------------------------------------
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Mortgage words which are defined in the Debenture Stock
Trust Deed have the same meaning when used in this Mortgage and:
"BUILDING" means any building, structure, earthworks or improvement
of any kind or any part thereof.
"CONVEYANCING ACT" means the Conveyancing Act 1919.
"CREDIT LEGISLATION" means any one or more of the following:
(1) Credit Act 1984 (NSW); Credit Act 1984
(Vic); Credit Act 1984 (WA); Credit Act
1987 (Qld); Credit Act 1985 (ACT) and any
corresponding Statute of any other State or
Territory of Australia which is a
Recognised State for the purposes of any
one or more of those Acts;
(2) Consumer Credit (New South Wales) Code;
Consumer Credit (Victoria) Code; Consumer
Credit (Western Australia) Code; Consumer
Credit (Queensland) Code; Consumer Credit
(Tasmania) Code; Consumer Credit (South
Australia) Code; Consumer Credit
(Australian Capital Territory) Code and
Consumer Credit (Northern Territory) Code;
and
(3) any other Statute for the regulation of the
provision of credit of another State or
Territory of Australia which is notified in
writing by the Mortgagee to the Mortgagor
as a Statute to which this clause relates,
being a Statute which, in the opinion of
the Mortgagee, is substantially similar to
the Credit Act 1984 (NSW) or the Consumer
Credit (New South Wales) Code.
"DEBENTURE STOCK TRUST DEED" means the deed so entitled between the
Mortgagor and the Mortgagee dated on or about the date of this
Mortgage.
"ENVIRONMENTAL LAW" means all laws relating to pollution or
protection of health, safety or the environment and includes,
without limitation, the conditions attaching to any licence or
approval issued for or covering the Mortgaged Property by any
Government Authority in respect of pollution or protection of that
kind.
"INSURANCES" means the insurances required by this Mortgage to be
taken out or
<PAGE> 478
maintained by the Mortgagor.
"LAND" means the land described on the Real Property Act form
comprising the cover sheet to this Mortgage.
<PAGE> 479
"MORTGAGED PROPERTY" means the Land together with:
(4) each and every estate in the Land;
(5) all liberties and easements held, used or enjoyed in
connection with the Land;
(6) all Buildings (permanent or temporary), fixtures,
tanks, stoves, engines, lifts, air conditioning
equipment and any other fitting or attachment now or at
any future time on the Land;
(7) all minerals, elements, quarries, waters, plantations,
gardens, trees and timber now or at any future time on
or in the Land;
(8) all present or future leases of the Land; and
(9) all land owned by the Mortgagor which is contiguous to
the Land together with any estate or interest in any
land or other right acquired by the Mortgagor which is
to be used or held in conjunction with the Mortgaged
Property.
"RECEIVER" means a receiver or receiver and manager appointed by
the Mortgagee under this Mortgage, and if more than one, then each
of them, and also any servant, agent or delegate of any of them.
"REGISTRAR GENERAL" means the Registrar General, the Director of
Land Titles, the Land Titles Office or any authorised officer
thereof as the context requires.
"STOCKHOLDER" has the meaning given in the Debenture Stock Trust
Deed.
"TENANCY ACT" means any of the Retail Leases Act 1994, the
Residential Tenancies Act 1987, or any similar Statute.
"WORKS" means the subdivision or stratification of the Land; or
(10) the construction of a Building;
(12) the renovation or repair of or addition to any
existing or future Building;
(13) the provision or installation of any amenity upon the
Land or in any Building; or
(14) the total or partial demolition of or removal of any
Building or amenity with a view to redevelopment,
upon the Land, or any proposal to do the same.
<PAGE> 480
1.2 INTERPRETATION
In this Mortgage:
(1) headings are for convenience only and do not affect
interpretation; and
unless the context indicates a contrary intention:
(2) the expression "PERSON" includes an individual, the
estate of an individual, a body politic, a corporation,
and a statutory or other authority or association
(incorporated or unincorporated);
(3) a reference to any party includes that party's
executors, administrators, successors, substitutes and
assigns, including any person taking by way of novation
and, in the case of a trustee includes any substituted
or additional trustee;
(4) a reference to the Land or Mortgaged Property includes
any part of it;
(5) a reference to this Mortgage, to another Transaction
Document or to any other document includes respectively
this Mortgage, the Transaction Document or that other
document as amended, varied, novated, supplemented,
ratified or replaced from time to time;
(6) a reference to any legislation or to any statutory
provision includes any statutory modification, rewrite
or re-enactment or any statutory provision substituted
therefor, and all ordinances, by-laws, regulations and
other statutory instruments issued thereunder;
(7) words importing the singular include the plural (and
vice versa) and words denoting a given gender include
all other genders;
(8) a reference to a clause is a reference to a clause of
this Mortgage;
(9) where any word or phrase is given a defined meaning,
any other part of speech or grammatical form in respect
of that word or phrase has a corresponding meaning;
(10) this Mortgage will take effect as a deed, and any
agreement, undertaking, acknowledgement, condition or
other term that is made or given by the Mortgagor in
this Mortgage will be deemed to be a covenant by the
Mortgagor in favour and for the benefit of the
Mortgagee;
(11) the terms of any Schedule to this Mortgage will be
deemed incorporated into this Mortgage;
<PAGE> 481
(l2) mentioning anything after "include", "includes" or
"including" does not limit what else may be included;
and
(13) the Mortgagor and the Mortgagee agree that this
Mortgage is a "Transaction Document" and a "Collateral
Security" as defined in and for the purposes of the
Debenture Stock Trust Deed.
2. THE MORTGAGE
2.1 The Mortgage
By this Mortgage, the Mortgagor mortgages the Mortgaged Property to
the Mortgagee to secure the due and punctual performance,
observance and fulfilment of all the Obligations and the payment in
full of the Secured Money.
2.2 Performance of obligations
The Mortgagor will punctually perform, observe and fulfil the
Obligations and pay the Secured Money in the manner provided in
this Mortgage or in any Transaction Document.
2.3 Credit Legislation not applicable
Nothing contained or implied in this Mortgage shall be deemed to
require or secure payment of any money or the performance of any
obligations by the Mortgagor under or in respect of any credit
contract to which the Credit Legislation applies.
2.4 Collateral to Debenture Stock Trust Deed
This Mortgage is collateral to and secures the same monies as are
secured by the Debenture Stock Trust Deed.
3. REPRESENTATIONS AND WARRANTIES
3.1 General representations and warranties
The Mortgagor represents and warrants to the Mortgagee that:
(1) (GOOD TITLE): the Mortgagor has, and whilst this
Mortgage remains on foot will continue to have, an
absolute and indefeasible title to the Mortgaged
Property free from all Encumbrances (other than this
Mortgage), prejudicial notifications, claims,
interests, public rights of way, easements,
restrictions on user, rights of adverse possession,
except for those to which this Mortgage is expressly
stated to be subject or those which have been fully
advised in writing to the Mortgagee and consented to in
writing by the Mortgagee;
(2) (ENVIRONMENTAL HAZARD): to the best of its knowledge
and belief, after having made all due and proper
enquiries, no circumstances
<PAGE> 482
exist in relation to the Mortgaged Property which,
having regard to a non-compliance with Environmental
Laws, may give rise to a substantial claim or to a
requirement of substantial expenditure by the
Mortgagor or to a requirement for cessation or
material alteration of its activity on or use of the
Mortgaged Property and no such claim or requirement
has been made as a result of non-compliance with
Environmental Laws; and
(3) (INCOME FROM MORTGAGED PROPERTY): except as expressly
permitted by the Relationship Agreement, no rents,
profits, entitlements, money or money's worth, or any
legal or beneficial right or interest in or any right
to receive any rents, profits, entitlements, money or
money's worth, whether in the nature of capital or
income, and whether payable now or in the future under
any lease or licence in relation to the Mortgaged
Property or otherwise derived from the Mortgaged
Property, have been assigned or Encumbered to any other
person.
3.2 REPRESENTATIONS AND WARRANTIES REPEATED
Each representation and warranty in clause 3.1 will be repeated on
each day whilst any of the Secured Money remains outstanding
(whether or not then due for payment) with reference to the facts
and circumstances then subsisting, as if made on each such day.
4. PROVISION OF INFORMATION
The Mortgagor will furnish to the Mortgagee promptly any
information regarding the Mortgaged Property as the Mortgagee from
time to time reasonably requires.
5. COVENANTS CONCERNING THE MORTGAGED PROPERTY
5.1 General restrictions regarding the Mortgaged Property
The Mortgagor will not without the prior written consent of the
Mortgagee (which will not be unreasonably withheld) or as expressly
permitted in any other Transaction Document:
(1) (NO ENCUMBRANCES): create, purport or attempt to create
or permit to exist, any Encumbrance however ranking
over the Mortgaged Property;
(2) (NO SALE ETC.): except as expressly permitted by the
Relationship Agreement, sell, agree to sell, dispose
of, dedicate for any public purpose or part with or
agree to part with possession of the Mortgaged
Property, or grant or agree to grant any easement,
restrictive covenant, licence or profit a prendre over
the Mortgaged Property, or subdivide or consolidate the
Mortgaged Property;
(3) (NOT TO REMOVE FIXTURES): remove from the Mortgaged
Property or sell or assign or otherwise dispose of any
fixture used or enjoyed in
<PAGE> 483
connection with the Mortgaged Property and having a
value exceeding $100,000 whether it is part of the
Mortgaged Property or not;
(4) (NOT TO PREJUDICE): do or permit any act, omission or
thing whereby the Mortgaged Property becomes or could
be liable to surrender, forfeiture or cancellation or
becomes prejudiced in any manner or the value of this
Mortgage as a security to the Mortgagee becomes or
could be materially lessened;
(5) (NOT TO SURRENDER): surrender the Mortgaged Property or
exchange the Mortgaged Property for other land of any
tenure or estate or for other rights either with or
without the receipt of any money or other consideration
in relation to it. If any exchange or surrender is
made, any land or rights acquired as a result will be
held by the Mortgagor on account of the Mortgagee as
further security for the Secured Money, and the powers,
rights and remedies given by this Mortgage or by
<PAGE> 484
Statute to the Mortgagee will apply to and be capable
of enforcement in relation to that land or those
rights;
(6) (NOT TO CLAIM PROTECTION): take any steps to obtain
protection under any Statute which provides for the
curtailment, postponement, defeat, extinguishment or
suspension of the rights of the Mortgagee in relation
to the Mortgaged Property without first giving to the
Mortgagee, and the Mortgagee having received, notice in
writing of its intention so to do; or
(7) (STEPS): take any steps towards doing any of the
foregoing things.
5.2 Encumbrances and restrictions
The Mortgagor will duly and punctually observe and perform:
(1) (OTHER ENCUMBRANCES): all the terms and conditions to
be observed and performed on the Mortgagor's behalf in
any other Encumbrance over the Mortgaged Property;
(2) (RESTRICTIONS AND EASEMENTS): all material terms,
conditions, restrictions, covenants, easements and
notifications to which the Mortgaged Property is
subject now or at any time after the date of this
Mortgage; and
(3) (COLLATERAL BENEFITS): all the terms and conditions of
any deed, agreement, grant, document or instrument
which creates any collateral benefit relative to or
capable of being enjoyed in conjunction with the
Mortgaged Property.
5.3 STATUTORY REQUIREMENTS
The Mortgagor will (or, to the extent that the Mortgaged Property
is subject to a lease, will procure that the lessee of the
Mortgaged Property will):
(1) (COMPLY WITH STATUTES): duly and punctually comply with
and observe all Statutes in force now or after the date
of this Mortgage that affect or relate to the Mortgaged
Property, or that if not complied with or observed
would or could impose a charge or liability upon the
Mortgaged Property;
(2) (RATES): duly and punctually pay all Taxes and other
rates, duties, charges, outgoings and assessments,
whether municipal, parliamentary, local or of any other
description now or after the date of this Mortgage
charged, chargeable, payable or assessed on or in
respect of the Mortgaged Property (whether assessed
against the Mortgagor or not), and will indemnify and
keep indemnified the Mortgagee from the payment of any
Taxes, rates, duties, charges,
<PAGE> 485
outgoings and assessments and from all claims and
demands in respect of any of them;
(3) (NO STATUTORY CHARGE): not apply for or obtain from any
Government Authority any money or material or otherwise
do or omit to do anything by which any charge or
liability is or might be imposed on the Mortgaged
Property in priority to or in derogation of this
Mortgage; and
(4) (NOTICES): on receipt, provide to the Mortgagee any
summons, process, notice, order or other document
received by the Mortgagor from any Government Authority
relating to or affecting the Mortgaged Property.
5.4 Repair
The Mortgagor will maintain the Mortgaged Property, keeping it in
good and tenantable repair and condition. Without limiting the
generality of the foregoing, the Mortgagor will:
(1) (REPAIR): promptly and in a good and workmanlike manner
make (or, to the extent that the Mortgaged Property is
subject to a lease, ensure that the lessee makes) any
repairs, renovations, additions and constructions to
the Mortgaged Property necessary for:
(1) keeping all Buildings comprising the Mortgaged
Property in good and tenantable repair and
condition; and
(2) complying with the requirements of any Government
Authority in relation to the Mortgaged Property;
(2) (NO ALTERATION WITHOUT CONSENT): not make or permit to
be made any substantial alteration or addition to the
Mortgaged Property or pull down, remove or demolish any
Buildings from time to time comprising the Mortgaged
Property without the prior written consent of the
Mortgagee;
(3) (CLEAN): keep the Mortgaged Property (or procure that
it is kept) clean, tidy and clear of rubbish; and
(4) (MAINTENANCE CONTRACTS): enter into and keep in force
contracts with respectable and qualified contractors
for the maintenance and repair of all plant, equipment
and electrical, mechanical and fire services to the
Mortgaged Property.
5.5 Use of Mortgaged Property
The Mortgagor will:
(1) (APPROVED USE): itself, and will cause every person
from time to time
<PAGE> 486
in occupation of the Mortgaged Property to only use the
Mortgaged Property for purposes permitted under any
Statute, development consent or other like consent,
approval or permission affecting the Mortgaged
Property;
(2) (MAINTAIN CURRENT USE): not discontinue or vary the
current use of the Mortgaged Property without the prior
written consent of the Mortgagee; and
<PAGE> 487
(3) (CONDUCT OF BUSINESS): conduct and maintain every
business carried on by the Mortgagor on the Mortgaged
Property from time to time in a proper and efficient
manner.
5.6 Complete Works
The Mortgagor will (or, to the extent that the Mortgaged Property
is subject to a lease, will procure that the lessee will) as soon
as all necessary approvals have been obtained commence any Works
not already commenced at the date of this Mortgage and will design,
carry out and complete all Works:
(1) promptly, in a proper and workmanlike manner and in
accordance with all terms, conditions and time limits
specified by the Mortgagee; and
(2) in strict accordance with any plans and specifications
approved by the Mortgagee and with the requirements of
all Government Authorities whose consent to the Works
is necessary.
Without limiting the generality of the foregoing, the carrying out
and completion of the Works includes:
(3) the doing of all things and the payment of all money as
may be necessary to procure the prompt registration by
the Registrar-General of any plan of subdivision,
strata plan or plan under any community title
legislation in relation to the Mortgaged Property
consequent upon the Works; and
(4) furnishing to the Mortgagee an up to date survey report
in relation to any Building comprising the Works
together with a building certificate in relation to the
Mortgaged Property in form and substance satisfactory
to the Mortgagee.
5.7 Payments Direct for Work
The Mortgagee is irrevocably authorised at its discretion to pay
any money to be advanced or otherwise provided by the Mortgagee and
secured by this Mortgage to any person to whom the Mortgagor or any
builder or head contractor engaged by the Mortgagor will for the
time being be indebted for work done and/or materials provided in
the course of or in respect of the design, carrying out and
completion of the Works. The Mortgagee will be entitled to rely on
the payee's statement as to the amount due to him without further
inquiry.
5.8 Environmental requirements
(1) The Mortgagor will, (or, to the extent that the
Mortgaged Property is subject to a lease, will procure
that the lessee will) in respect of the Mortgaged
Property, maintain procedures which in the reasonable
<PAGE> 488
opinion of the Mortgagee are adequate to monitor:
(1) the Mortgagor's compliance with Environmental Laws; and
(ii) circumstances which, having regard to a non-compliance
with Environmental Laws, may give rise to a claim or to
a requirement of substantial expenditure by the
Mortgagor or
<PAGE> 489
of cessation or material alteration of its
activity on or use of the Mortgaged Property
("MATERIAL HAZARD").
(2) Where the Mortgagee reasonably suspects that the
Mortgagor is not complying with sub-clause (a) above or
with an Environmental Law and the result is likely, in
the reasonable opinion of the Mortgagee, to have a
material adverse effect on the value of the Mortgaged
Property, the Mortgagee may have, or may require the
Mortgagor to have (in each case at the Mortgagor's
expense), an audit conducted by an environmental
auditor acceptable to the Mortgagee of the procedures
of the Mortgagor for compliance with Environmental Laws
and/or in respect of any Material Hazard. The Mortgagor
will do everything necessary to promptly facilitate or
arrange that audit.
(3) Where the procedures or the audit referred to above
reveal any non-compliance with any Environmental Law,
or reveal any Material Hazard and the result is likely,
in the reasonable opinion of the Mortgagee, to have a
material adverse effect on the value of the Mortgaged
Property, the Mortgagor will promptly remedy them and
failure to promptly remedy them will be deemed to be an
Event of Default.
(4) The Mortgagor will ensure that each lessee of the
Mortgaged Property complies with its obligations
regarding Environmental Laws under the relevant lease,
and will provide to the Mortgagee copies of all
documents received by the Mortgagor from any such
lessee under the environmental provisions of any such
lease.
5.9 Leasing
The Mortgagor will:
(1) (LEASING): not, without the prior consent of the
Mortgagee, enter into any lease or licence to use or
occupy the Mortgaged Property other than a lease:
(1) in favour of Moran Health Care (Australia) Pty
Limited or any of its Related Bodies Corporate on
terms and conditions approved by the Mortgagee; or
(2) to a resident or intending resident of part of the
Mortgaged Property which is a nursing home or other
aged care facility on terms and conditions approved
by the Mortgagee (acting reasonably);
(2) (ENFORCE): take all action that a prudent, diligent or
reasonable person would take to cause any tenant under
any lease or licence to perform its obligations owed to
the Mortgagor or compensate the Mortgagor for
non-performance and will not, without the
<PAGE> 490
Mortgagee's prior written consent, release any of
those obligations;
(3) (NO ASSIGNMENT OF RENTAL ENTITLEMENT): except as
expressly permitted by the Relationship Agreement, not
assign or grant any Encumbrance (other than in favour
of the Mortgagee) over any right to receive any rents,
profits, entitlements, money or money's worth or any
legal or beneficial right to receive any rents,
profits, entitlements, money or money's worth, whether
in the nature of capital or income, payable now or in
the future in respect of any lease or sub-lease of or
licence to use or occupy the Mortgaged Property or any
agreement to grant any such lease or otherwise derived
from the Mortgaged Property;
(4) (NO CONSENT TO ASSIGNMENT): not, without the prior
written consent of the Mortgagee, cause or permit the
person having the benefit of any lease, sub-lease or
licence (other than a resident of part of the Mortgaged
Property which is a nursing home or other aged care
facility) to assign, transfer, demise, grant any
sub-lease or licence pursuant to, mortgage, charge or
otherwise deal with such lease, sublease or licence or
any interest arising under any of them;
(5) (INFORMATION): on reasonable demand by the Mortgagee,
provide to the Mortgagee:
(1) all leases, sub-leases, licences and other
documents evidencing or containing the terms and
conditions under which any person occupies or uses
the Mortgaged Property; and
(2) such further information, explanations and
verifications required by the Mortgagee relating to
any leases, sub-leases, licences or documents or
the management of the Mortgaged Property on the
Mortgagor's behalf; and
(6) (TENANCY ACT): not (and, to the extent that the
Mortgaged Property is subject to a lease, will procure
that the lessee does not) create any tenancy in
relation to the Mortgaged Property which is or may
become subject to any Tenancy Act without the prior
written consent of the Mortgagee and will ensure that
all tenancies which are so created comply with the
relevant Tenancy Act and the lease or any options
granted pursuant to the lease contain a provision
confirming that it is subject to the relevant Tenancy
Act.
5.10 Encroachments by or onto the Mortgaged Property
(1) If at any time any Building comprising the Mortgaged
Property substantially encroaches onto any adjoining
property not owned by the Mortgagor and mortgaged to
the Mortgagee, the Mortgagor will:
(1) (to the extent to which the Mortgagee has not
already been
<PAGE> 491
advised of such encroachment), advise the Mortgagee
in writing; and
(2) at its own expense rectify the encroachment or
obtain an easement to authorise the continuation of
the encroachment.
(2) If at any time any Building on any adjoining property
encroaches onto the Mortgaged Property, the Mortgagor
will advise the Mortgagee, and at its own expense:
(1) will remove the encroachment; and
(2) will not grant an easement to authorise the
continued existence of that encroachment
without the Mortgagee's prior written consent.
5.11 Resumption Etc. and Release
The Mortgagor:
(1) (COMPENSATION ETC.): will (except to the extent to
which any lease of the Mortgaged Property approved by
the Mortgagee requires such moneys to be paid to a
lessee of the Mortgaged Property) pay to the Mortgagee
immediately on receipt all money which may become
payable as purchase money or compensation or otherwise
in respect of the Mortgaged Property, or in respect of
any resumption or the grant of any easement, licence,
profit or other right over the Mortgaged Property,
which, at the option of the Mortgagee, will be applied
in or towards repayment of the Secured Money;
(2) (APPOINTMENT OF MORTGAGEE): hereby appoints and
empowers the Mortgagee at any time following the
occurrence of an Event of Default to claim that money
and alone (to the exclusion of the Mortgagor or any
other person) to:
(1) agree, compromise and settle any such claim;
(2) demand, sue for, recover, receive and give
discharges for that money;
(3) execute any necessary assurances and releases,
and to do all of the foregoing in the name of the Mortgagor
notwithstanding anything in any Statute under which that
money may be payable. The Mortgagor hereby releases the
Mortgagee from any claim for anything done or omitted to be
done by the Mortgagee when so acting.
5.12 Caveats
The Mortgagor will remove from the title to the mortgaged land any
caveat or other prejudicial notification (other than a caveat or
notification lodged by the Mortgagee) which
<PAGE> 492
prohibits the recording of any estate or interest of the Mortgagor
or the Mortgagee in the Mortgaged Property or affects any such
estate or interest or protects an interest in the Mortgaged
Property not permitted by this Mortgage.
6. INSURANCE COVENANTS
6.1 Insurances
(1) (INSURE): the Mortgagor will insure all improvements on
the Mortgaged Property against:
(1) loss, theft, damage and destruction;
(2) loss, including without limiting the generality of
the foregoing, loss of rent, income, capital or
other revenue derived from the Mortgaged Property
caused by or contributed to by any loss, theft,
damage or destruction of the Mortgaged Property or
any other event;
(3) any liability from time to time of the Mortgagee or
the Mortgagor in respect of the ownership, use or
occupation of the Mortgaged Property; and
(4) all risks usually associated with any Works;
(2) (TERMS): all Insurances will:
(1) be taken out with an insurer reasonably approved by
the Mortgagee;
(2) have the name of the Mortgagee noted as an
interested party;
(3) insure the Mortgagor's and the Mortgagee's
respective insurable interests;
(4) be for such amounts and cover such risks and
contain such terms and conditions as the Mortgagee
reasonably requires; and
(5) not be varied in a material respect or cancelled
without the prior written consent of the Mortgagee;
(3) (FULL REPLACEMENT VALUE): all Insurances against loss,
theft, damage or destruction of the Mortgaged Property
will be for the full replacement value thereof from
time to time unless the Mortgagee otherwise agrees in
writing; and
(4) (POLICIES): a certified copy of all documents relating
to the Insurances, including, a certified copy of each
proposal form under which the application for insurance
was made, the relevant policies, all renewal
certificates, certificates of currency and endorsement
slips, are to be delivered by the Mortgagor to the
Mortgagee immediately upon request by the Mortgagee.
<PAGE> 493
6.2 Assignment of Insurances
As further and better security, the Mortgagor assigns to the
Mortgagee the Mortgagor's right, title and interest in the
Insurances and all money which at any time becomes owing to the
Mortgagor by any insurer under the Insurances.
6.3 Maintenance of Insurances and Production of Policy
The Mortgagor will:
(1) maintain all Insurances;
(2) duly and punctually pay or cause to be paid all
premiums and other money payable under, and perform,
observe and fulfil the terms of, all Insurances;
(3) produce to the Mortgagee the policy of Insurance and
the receipts for the payment of each premium and all
other money payable in respect of each policy (or other
evidence of payment satisfactory to the Mortgagee) at
least 14 days before the due date for renewal thereof;
and
(4) ensure that every policy of Insurance:
(1) contains an agreement by the insurer that,
notwithstanding the lapse of any policy (except by
reason of expiration in accordance with its terms)
or any right of cancellation of the insurer or any
cancellation by the Mortgagor (whether voluntary or
involuntary), that policy will continue in force
for the benefit of the Mortgagee for at least 30
days after written notice of cancellation has been
sent by certified mail to the Mortgagee and that no
reduction in limits or coverage in that policy in
whole or part will be effected except with the
prior written consent of the Mortgagee; and
(2) insures the Mortgagee's interest up to the limits
of the policy regardless of any breach or violation
by the Mortgagor of any warranties, declarations or
conditions contained in that policy.
6.4 Full Disclosure and Compliance with Policies
The Mortgagor will disclose to the proposed insurer all facts
material to the insurer's risk before entering into the Insurances.
6.5 No liability
The Mortgagee will not incur any liability to the Mortgagor arising
out of any failure by the Mortgagee to effect or renew any
Insurance, nor will the Mortgagee incur any liability
<PAGE> 494
arising out of any failure by the insurer for any reason to meet
any claim under any Insurance.
6.6 Option as to payments
If any part of the Mortgaged Property is lost, stolen, damaged or
destroyed, the sum received under any Insurance will (to the extent
to which it exceeds $250,000 in any one year) be applied at the
option of the Mortgagee:
(1) towards the replacement or repair of the relevant
property; or
(2) in or towards repayment or reduction of the Secured
Money.
6.7 Money paid to mortgagor
If any money payable under the Insurances comes into the hands of
the Mortgagor, it will be paid to the Mortgagee immediately.
6.8 Not prejudice insurances
The Mortgagor will not cause or permit anything to be done which
may:
(1) render any part of the Insurances void, voidable or
otherwise unenforceable;
(2) hinder or prevent the recovery of any money in respect
of the Insurances; or
(3) cause the premiums and other money payable to any
insurer to be increased.
7. EVENTS OF DEFAULT
If any Event of Default occurs and while it subsists, at the option
of the Mortgagee and notwithstanding any delay or previous waiver
of the right to exercise that option, the Secured Money becomes
immediately due and payable on demand, and all Powers not
previously exercisable become exercisable.
8. MORTGAGEE'S POWERS
8.1 Mortgagee's Powers
At any time after the Secured Money has become due and payable or
an Event of Default has occurred and has not been waived or
rectified with any relevant period permitted in any Transaction
Document, the Mortgagee will be entitled to exercise, in addition
to its power of sale and all other Powers, any one or more of the
following powers without the need for any notice to the Mortgagor:
<PAGE> 495
(1) (TO SELL): to sell or concur in selling the Mortgaged
Property by auction, private treaty or tender, at any
time and on any terms and special conditions as the
Mortgagee thinks fit;
(2) (TO TAKE POSSESSION): to take possession or control of
or make use of the Mortgaged Property or relinquish
such possession or control;
(3) (TO FORECLOSE): to foreclose on the Mortgaged Property
and to procure the registration of the Mortgaged
Property into the name of the Mortgagee for its own use
and benefit absolutely free from all adverse estates,
interests and rights;
(4) (TO COLLECT RENTS): to enter into possession of the
Mortgaged Property by receiving its rents, profits and
income;
(5) (TO LEASE): notwithstanding section 106 of the
Conveyancing Act, to lease or licence or to enter into
agreements to lease or to licence or to renew any lease
or licence of the Mortgaged Property in the name of the
Mortgagor or the Mortgagee and for any period and on
any terms or to vary or terminate a lease or licence;
(6) (TO ACCEPT SURRENDERS): notwithstanding section 107 of
the Conveyancing Act to accept surrenders of and to
terminate any lease of or licence of the Mortgaged
Property on any terms;
(7) (TO MANAGE): to manage the Mortgaged Property and do
any other thing that the Mortgagee in its absolute
discretion thinks fit to efficiently utilise the
Mortgaged Property or to obtain income from it;
<PAGE> 496
(8) (TO SELL ETC. OTHER MORTGAGED PROPERTY): to exercise
its power of sale, lease or licence in relation to the
Mortgaged Property in conjunction with the exercise of
any similar power in relation to any other property of
the Mortgagor, whether real or personal, which is
subject to an Encumbrance in favour of the Mortgagee,
by one contract and at one price or at one rent or fee
or in any other manner that the Mortgagee thinks fit,
and with full power to apportion all costs, expenses,
purchase money, rent and fees between the properties so
dealt with;
(9) (TO CARRY ON BUSINESS): to carry on or concur in
carrying on any business then conducted from the
Mortgaged Property, and to effect all insurances and do
all acts which the Mortgagor might do in the ordinary
conduct of business for the protection or improvement
of the Mortgaged Property;
(10) (TO BORROW OR RAISE MONEY): to borrow or raise from the
Mortgagee or any other person any money which may be
required for any purpose and in the name of the
Mortgagor or otherwise to secure any money borrowed or
raised by the grant of any Encumbrance over the
Mortgaged Property so that the Encumbrance ranks in
priority to, pari passu with or after this Mortgage.
The Mortgagee will not be bound to inquire as to the
necessity or propriety of any Financial Liability nor
be responsible for the misapplication or
non-application of any money so borrowed or raised;
(11) (TO ENGAGE): to engage consultants, contractors,
professional advisers, agents and employees at such
salaries or remuneration as the Mortgagee thinks fit
and the Mortgagee may act upon any advice given by that
person;
(l2) (TO CONDUCT WORKS): to carry out any Works on the
Mortgaged Property including, without limitation to,
repair, renew, replace, renovate or clean the Mortgaged
Property, to erect any new Buildings or make any
improvements to any land forming part of the Mortgaged
Property, to demolish, alter, rebuild or extend any
existing Buildings on the Mortgaged Property, or to
strata, subdivide, consolidate, develop or rezone any
land forming part of the Mortgaged Property;
(13) (EASEMENTS AND RESTRICTIVE COVENANTS): to obtain or
grant any easement or restrictive covenant over or in
relation to the Mortgaged Property;
(14) (TO SEVER AND SELL FIXTURES): to sever fixtures
belonging to the Mortgagor and to sell them separately
from any other part of the Mortgaged Property;
(15) (TO REMOVE CHATTELS): to remove, give away, dump, store
with any
<PAGE> 497
party (including the Mortgagee), all chattels
which are located upon but are not part of the
Mortgaged Property or subject to any Encumbrance in
favour of the Mortgagee, without any liability to the
Mortgagor or any third party;
(16) (TO INVEST PROCEEDS AGAINST CONTINGENCIES): if any of
the Secured Money is contingent, to invest, deposit or
hold the Mortgaged Property or the proceeds from the
sale, lease or other dealing with the Mortgaged
Property in a form or mode of investment for the time
being as the Mortgagee in its absolute discretion
thinks fit, with like power to vary, transpose or
re-invest the investments or deposits from time to time
until such part of the Secured Money ceases to be
contingent;
(17) (TO ENTER INTO CONTRACTS): to enter into any contract
or arrangement with any person for any purpose
connected with this Mortgage or the Mortgaged Property
or in furtherance of any Power, on such terms and
conditions as the Mortgagee in its absolute discretion
thinks fit, including, without limitation, granting or
conferring options to, in favour of or exercisable by
any person for the purpose of or in connection with the
sale, purchase, leasing, hiring or other dealing with
the Mortgaged Property;
(18) (TO PERFORM CONTRACTS): to perform, observe, carry
out, enforce specific performance of, exercise or
refrain from exercising, the Mortgagor's rights and
powers under, obtain the benefit of, and vary or
rescind all contracts, leases, licences and rights
forming part of the Mortgaged Property or entered into
in the exercise of any Power;
(19) (TO TAKE PROCEEDINGS): to institute, conduct or defend
any proceedings in law, equity or bankruptcy, and to
submit to arbitration, mediation or conciliation, in
the name of the Mortgagor or otherwise and on any
terms, any proceeding, claim, question or dispute in
connection with the Mortgaged Property or otherwise;
(20) (TO COMPROMISE): to make any settlement, arrangement or
compromise regarding any action, proceeding or dispute
arising in connection with the Mortgaged Property, to
grant to any person involved time or other indulgence,
and to execute all related releases or discharges as
the Mortgagee thinks fit;
(21) (TO APPEAL): to appeal against or to enforce any
judgment or order in respect of the Mortgaged Property;
(22) (TO BANKRUPT DEBTORS AND WIND-UP COMPANIES): to make
debtors bankrupt and to wind-up companies and to do all
things in connection with any bankruptcy or winding up
which the Mortgagee thinks necessary for the recovery
or protection of the Mortgaged Property
<PAGE> 498
or for the security or other benefit of the Mortgagee;
(23) (INSURANCE CLAIMS): to make, enforce, compromise and
settle all claims in respect of insurance over or
affecting the Mortgaged Property;
(24) (TO DELEGATE): to delegate to any person for such time
or times as the Mortgagee approves, any of the Powers,
including this power of delegation;
<PAGE> 499
(25) (TO DO ALL OTHER THINGS NECESSARY): to do all things
necessary to perform, observe and fulfil any of the
Mortgagor's covenants contained in this Mortgage; and
(26) (MORTGAGEE'S DISCRETION): to do all other acts and
things without limitation as the Mortgagee thinks fit.
8.2 Mortgagee's right to enter
Subject to the terms of any lease of any Mortgaged Property
approved by the Mortgagee, the Mortgagee will be at liberty at all
times, with or without workmen, surveyors, architects, experts and
others to enter the Mortgaged Property to:
(1) (INSPECT): inspect the condition of the Mortgaged
Property;
(2) (COMPLIANCE): determine whether the terms of this
Mortgage are being complied with;
(3) (COPIES): inspect and take copies of records relating
to the Mortgaged Property or any business of the
Mortgagor conducted on or from the Mortgaged Property;
and
(4) (EXERCISE POWERS): exercise any Power.
Provided that no Event of Default has occurred and is subsisting,
any action taken by the Mortgagee or on its behalf under this
clause will be at the Mortgagee's sole risk in so far as compliance
with occupational health and safety legislation and law is
concerned.
8.3 Mortgagee may make good default
If the Mortgagor defaults in duly performing, observing and
fulfilling any of the Obligations, the Mortgagee may, without
prejudice to any other Power, do all things and pay all money
necessary or expedient in the opinion of the Mortgagee to make good
or to attempt to make good that default to the satisfaction of the
Mortgagee.
8.4 Title documents
The Mortgagee will be entitled to have and to retain the possession
of all certificates of title to the Mortgaged Property and all
surveys, insurance policies and certificates issued by or to any
Government Authority relating to the Mortgaged Property, whether or
not they also relate to property other than the Mortgaged Property.
8.5 Notice for exercise of Powers
(1) The Powers may be exercised by the Mortgagee and the
Receiver immediately on or at any time after the
Secured Money becomes payable or an Event of Default
occurs, without any notice or lapse of
<PAGE> 500
time being necessary unless required by a law which
cannot be excluded or by any inconsistent provision in
this Mortgage.
(2) One day is fixed as the period for which:
(1) default must continue in the performance,
observance and fulfilment of the whole or any part
of the Obligations or in the payment of any part of
the Secured Money, including interest, before the
Mortgagee may serve any notice in writing as
required by any Statute affecting the Powers; and
(2) default must continue after the service of notice
before any power of sale may be exercised.
9. RECEIVER
9.1 Appoint Receiver
At any time after the Secured Money has become due and payable or
an Event of Default has occurred, and without prejudice to, and
notwithstanding the prior exercise of, any other right or remedy it
has, the Mortgagee may appoint in writing any person or persons to
be a receiver or receiver and manager of the Mortgaged Property,
and to withdraw the appointment of any Receiver of the Mortgaged
Property and, in the case of the removal, retirement or death of
any Receiver, to appoint another person or persons in its place.
9.2 Powers of Receiver
Each Receiver will have all of the powers conferred on the
Mortgagee by this Mortgage as if they had been expressly conferred
on the Receiver, and any further powers as the Mortgagee confers
upon the Receiver, without the need for any consent by the
Mortgagor.
9.3 Joint Receivers
If more than one person is appointed as a Receiver of the Mortgaged
Property, the Mortgagee may specify whether the appointment and the
Powers of each appointee, will at its option be joint or joint and
several, and failing such specification, the appointment and the
Powers of each person will be deemed to be joint and several.
9.4 Remuneration of Receiver
The Mortgagee may fix the remuneration of any Receiver at such rate
as the Mortgagee from time to time determines, which rate will not
exceed the standard hourly rate from time to time charged by the
firm of which the Receiver is a member for work of the level
conducted by the Receiver.
9.5 Agent of the Mortgagor
Every Receiver will be the agent of the Mortgagor and the Mortgagor
will be solely
<PAGE> 501
responsible for all acts and omissions by and the remuneration of
the Receiver.
9.6 Indemnity
The Mortgagee may give such indemnities to the Receiver concerning
the performance of the Receiver's duties as are permitted by law,
and if the Mortgagee is obliged to pay any money under any
indemnity, that money will become part of the Secured Money.
10. FURTHER POWERS OF MORTGAGEE AND RECEIVER
10.1 Appoint Agents
The Mortgagee may itself exercise its Powers or appoint an agent or
joint and several agents and delegate such powers to it or them (in
which case clauses 9.1, 9.2, 9.4 and 9.6 will apply as if it or
they were appointed as a Receiver).
10.2 Act Jointly
The Mortgagee or the Receiver may exercise any of the Powers in
conjunction with the exercise of similar powers by any other
Encumbrancee of the Mortgaged Property or by any receiver or
receiver and manager appointed by that other Encumbrancee, and may
enter into and give effect to agreements and arrangements with that
other Encumbrancee or receiver or receiver and manager as the
Mortgagee or Receiver thinks fit.
10.3 Power of Attorney
(a) The Mortgagor irrevocably appoints the Mortgagee, each
director, manager and attorney from time to time of the
Mortgagee, and any Receiver appointed under this
Mortgage, severally, as attorney of the Mortgagor, with
power at any time after the occurrence of an Event of
Default to:
(1) do all acts which ought to be done by the Mortgagor
under this Mortgage or to exercise any Power;
(2) demand, sue for, recover and receive the Mortgaged
Property from any person, in the name of and on
behalf of the Mortgagor, or in the name of the
Mortgagee or an attorney appointed under this
Mortgage;
(3) take further action and to execute further
instruments which are, or are in the opinion of the
Mortgagee, either necessary to more satisfactorily
secure the payment of the Secured Money or are
expedient in relation to the Mortgaged Property;
and
(4) appoint (and remove at will) at any time any
person(s) as a substitute(s) for an attorney or
attorneys.
(2) The Mortgagor ratifies and confirms now and for the
future all actions lawfully undertaken by or on behalf
of its attorney under this Power
<PAGE> 502
of Attorney.
(3) The Mortgagor declares that this Power of Attorney will
continue in force until all actions taken under it have
been completed, notwithstanding the discharge of this
Mortgage or any of the agreements or arrangements to
which it refers.
10.4 No Interference with Power of Sale
The Mortgagor will not in any way interfere with, restrict or
otherwise seek to prevent or delay the exercise of any power of
sale of the Mortgaged Property by the Mortgagee or any Receiver,
unless the Mortgagor first brings into court a sum of money
sufficient to redeem this Mortgage.
10.5 Authority to Complete Blanks
The Mortgagor irrevocably authorises the Mortgagee or its
solicitors to complete all blanks in this Mortgage, in any
Transaction Document or in any document incidental to any of them,
and to make any formal additions or amendments as the Mortgagee or
its solicitors consider requisite to procure the stamping or
registration of any of those documents.
11. APPLICATION OF MONEY
11.1 Priority of Payments
All money received by the Mortgagee or by the Receiver as a result
of the exercise of the Powers may be applied in the following
order:
(1) (INCIDENTAL TO EXERCISE OF POWERS): in payment of all
costs, charges, expenses and disbursements incurred in
or incidental to the exercise or attempted exercise of
any of the Powers;
(2) (OUTGOINGS): in payment of any other outgoings as the
Receiver or the Mortgagee thinks fit;
(3) (PAYMENT OF SECURED MONEY): in payment of the balance
of the Secured Money then owing or contingently or
prospectively owing, whether or not due and payable;
(4) (SUBSEQUENT ENCUMBRANCES): in payment of subsequent
Encumbrances of which the Mortgagee is aware in the
order of their priority; and
(5) (SURPLUS): the surplus (if any) belongs to the
Mortgagor but does not carry interest.
11.2 Money Received
In applying any money towards satisfaction of the Secured Money,
the Mortgagor will be
<PAGE> 503
credited only with so much of the money available for that purpose
as will be actually received by the Mortgagee or the Receiver and
not required for whatever reason to be disgorged, any credit to
date from the time of receipt.
11.3 Application of Payments or Credits
Each of the Mortgagee and the Receiver has an absolute discretion
to apply any payment or credit received by it under this Mortgage
in reduction of any part or parts of the Secured Money, whenever
and on whatever account it became secured, notwithstanding any
principle or presumption of law to the contrary or any direction
given at the time of receipt, and without the need to communicate
its election to any person.
11.4 Reliance on Certificate
In making any payment to any other Encumbrancee under clause 11.1,
the Mortgagee and the Receiver may rely on a certificate from that
Encumbrancee as to the amount secured, and are not bound to enquire
as to the accuracy of the certificate or whether the amount
referred to is validly secured by the Encumbrance.
12. LIABILITY AND RELEASE
12.1 Continuing Obligation
This Mortgage constitutes a continuing obligation regardless of any
settlement of account, intervening payment, express or implied
revocation, or any other matter or thing. Without limiting the
generality of the foregoing, each indemnity in this Mortgage is a
separate additional and continuing obligation and will survive the
discharge of this Mortgage. Unless otherwise agreed, payment by the
Mortgagee will not be a pre-condition to liability under any
indemnity.
12.2 Personal Liability
Notwithstanding any payout figure quoted or other form of account
stated by the Mortgagee, and notwithstanding the rule in Groongal
Pastoral Company Limited (In Liquidation) v. Falkiner (1924) 35 CLR
157, no grant of full or partial satisfaction of or discharge from
this Mortgage by the Mortgagee will release the Mortgagor from
personal liability under this Mortgage or under any Transaction
Document until all the Secured Money has in fact been received by
the Mortgagee and is not liable to be disgorged for any reason,
notwithstanding that the quotation or statement of account has
arisen from the mistake, negligence, error of law or error of fact
of the Mortgagee, its servants or agents.
12.3 Settlement Conditional
Any settlement or discharge between the Mortgagor and the Mortgagee
is conditional on any security or payment given or made to the
Mortgagee by the Mortgagor or any other person in relation to the
Obligations not being avoided, repaid or reduced by virtue of any
Insolvency Provision. If the security or payment is avoided, repaid
or reduced, the Mortgagee will be entitled to recover the value or
amount of such security or payment avoided, repaid or reduced from
the Mortgagor subsequently as if that settlement or
<PAGE> 504
discharge had not occurred.
12.4 Mortgagor's Liability Not Affected
This Mortgage and the liability of the Mortgagor under this
Mortgage will not be affected or discharged by any of the
following:
(1) (INDULGENCE): the granting to the Mortgagor or to any
other person of any time or other indulgence or
consideration;
(2) (TRANSACTION DOCUMENTS): the Mortgagee failing or
neglecting to recover by the realisation of any
Transaction Document, other security or otherwise any
of the Secured Money;
(3) (LACHES): any other laches, acquiescence, delay, act,
omission or mistake on the part of the Mortgagee or any
other person;
(4) (RELEASE): the release, discharge, abandonment or
transfer, whether wholly or partially and with or
without consideration, of any Transaction Document,
other security, judgment or negotiable instrument held
from time to time or recovered by the Mortgagee from or
against the Mortgagor or any other person; or
(5) (ANY OTHER THING): any other matter or thing.
12.5 Release of Mortgaged Property
The Mortgagee will be under no obligation to grant a release of the
Mortgaged Property from this Mortgage unless at the time the
release is to be provided, none of the Secured Money is owing
(whether actually contingently or prospectively), none of the
Obligations remain to be performed and it is not reasonably
foreseeable that there could be any such money owing or Obligations
to be performed at a future time.
13. PROTECTION AND INDEMNITY
13.1 Waiver by Mortgagor
The Mortgagor waives in favour of the Mortgagee:
(1) all rights against the Mortgagee and any other person,
estate or assets as far as is necessary to give effect
to any provision of this Mortgage;
(2) promptness and diligence on the part of the Mortgagee,
and any other requirement that the Mortgagee take any
action or exhaust any right against any other person
before enforcing this Mortgage; and
(3) all rights inconsistent with the provisions of this
Mortgage, including any rights of contribution or
subrogation which the Mortgagor might
<PAGE> 505
otherwise be entitled to claim or enforce.
13.2 No Liability for Loss
Neither the Mortgagee nor any Receiver will be liable or otherwise
accountable for any omission, delay, mistake, loss or irregularity
in or concerning the exercise, attempted exercise, non-exercise or
purported exercise of any Power, except for actual fraud or wilful
misconduct.
13.3 No Liability to Account
Neither the Mortgagee nor any Receiver will, by reason of the
Mortgagee or the Receiver entering into possession of the Mortgaged
Property, be liable to account as mortgagee or chargee in
possession, or for anything except actual receipts, or be liable
for any loss on realisation, or for any default, omission, delay or
mistake for which a mortgagee or chargee in possession might be
liable.
13.4 No Conflict
The Mortgagee and any Receiver may exercise any Power
notwithstanding that the exercise of that Power involves a conflict
between any duty owed to the Mortgagor by the Mortgagee or that
Receiver and any duty owed by the Mortgagee or Receiver to any
other person, or the interests of the Mortgagee or Receiver. No
contract will be void or voidable by virtue of any such conflict of
duty or interest, nor will the Mortgagee or Receiver be liable to
account to the Mortgagor or any other person for any money or
property as a result of such conflict.
13.5 No Notice or Enforcement
The Mortgagee need not give any notice of this Mortgage to any
debtor of the Mortgagor, or to any purchaser, or to any other
person, or enforce payment of any money payable to the Mortgagor,
or realise any of the Mortgaged Property, or to take any steps or
proceedings for that purpose.
13.6 Indemnity
The Mortgagor will on demand indemnify and keep the Mortgagee
indemnified in respect of all costs, expenses, liabilities and
losses incurred by the Mortgagee or the Receiver:
(1) in the exercise, attempted exercise or non-exercise of
any Power, including (without limitation) those
consequent on any mistake, oversight, error of judgment
or want of prudence on the part of the Mortgagee or the
Receiver, unless the same is due to actual fraud or
wilful misconduct;
(2) as a consequence of the occurrence of any Event of
Default;
(3) by reason of this Mortgage;
<PAGE> 506
(4) in respect of any act or omission for which the
Mortgagee or the Receiver is exonerated by this
Mortgage; and
(5) by reason of the Mortgagee redeeming or taking a
transfer of any Encumbrance ranking in priority to or
pari passu with this Mortgage,
and the Mortgagor will defend all actions, proceedings, claims or
demands brought by any person in relation to any matter the subject
of this indemnity.
13.7 Protection of Persons Dealing with the Mortgagee or Receiver
No person acquiring any money or asset from or paying or handing
over any money or asset to or otherwise dealing with the Mortgagee,
the Receiver or any attorney appointed under this Mortgage, or to
whom is tendered for registration an instrument executed by the
Mortgagee, the Receiver or any attorney appointed under this
Mortgage will be:
(1) bound to inquire:
(1) whether any Event of Default has occurred;
(2) whether any of the Secured Money is owing or
payable;
(3) whether the Receiver or attorney has been
properly appointed;
(4) as to the propriety or regularity of the
exercise or purported exercise of any Power; or
(5) as to any other matter or thing;
(2) affected by actual or constructive notice that any
transaction, document or other dealing is unnecessary
or improper; or
(3) concerned to see to the application of any money or
asset, or be answerable or accountable for any loss or
misapplication,
and the irregular, improper or unnecessary exercise of any Power
will be, as regards the protection of any such person, deemed to be
authorised by the Mortgagor and valid.
14. PAYMENTS
14.1 Money Repayable as Agreed or on Demand
Unless otherwise agreed in writing, the Secured Money will be
payable by the Mortgagor to the Mortgagee in Australian dollars
immediately on demand by the Mortgagee.
14.2 Credit Balances of Other Accounts
In determining the Secured Money, no credit need be allowed by the
Mortgagee for any credit balance in any joint or other account of
the Mortgagor with the Mortgagee, or for any other money owing by
the Mortgagee to the Mortgagor.
<PAGE> 507
14.3 Payment of Interest
The Mortgagor will pay interest on the Secured Money to the
Mortgagee or any Stockholder, in accordance with any Transaction
Document, and in the absence of any relevant provision, to the
Security Trustee at the Specified Rate calculated on daily balances
computed from the time or respective times when the money becomes
owing to, or is paid by, the Mortgagee. Interest accrues daily, and
is payable on the earlier of a demand from the Mortgagee or the
last Banking Day of each calendar month, whilst the Secured Money
remains outstanding.
14.4 Capitalisation of Interest
The Mortgagee may capitalise any interest which has become due and
owing in accordance with any Transaction Document or in the absence
of any relevant provision, then at such periods of not less than
one calendar month and from such dates as the Mortgagee elects. The
accumulation of capitalised interest may continue until the Secured
Money has been paid in full notwithstanding any composition,
compromise, judgment or order in respect of any person or any other
thing.
14.5 Merger
If the liability of the Mortgagor to pay to the Mortgagee any of
the Secured Money becomes merged in any judgment or order, the
Mortgagor will, as an independent obligation, pay interest at the
rate which is the higher of that payable under this Mortgage and
that fixed by or payable under that judgment or order.
14.6 No Deduction for Taxes and no Set-off or Counterclaim
Subject to any Transaction Document, all payments of Secured Money
by the Mortgagor to the Mortgagee will be:
(1) free of any set-off or counterclaim; and
(2) subject to any Statute, without deduction or
withholding for any present or future Taxes.
14.7 Mutual Accounts
The Mortgagee may without prior notice:
(1) apply any credit balance (whether or not then due) to
which the Mortgagor is at any time entitled and in any
currency at any office of the Mortgagee in or towards
satisfaction of any sum then due and unpaid from the
Mortgagor to the Mortgagee under this Mortgage; and
(2) set-off any amount owing by the Mortgagor under this
Mortgage,
<PAGE> 508
whether actual, contingent or prospective, against any
liability, whether actual, contingent or prospective
of the Mortgagee to the Mortgagor.
The Mortgagee may effect such currency exchanges as it considers
appropriate in the exercise of any of its rights under this clause.
14.8 Currency Conversion and Indemnity
(1) If any amount is required to be paid in a particular
currency and the Mortgagee receives payment in another
currency, then the Mortgagee may actually or notionally
convert the amount received into the required currency
at the spot rate which it is or considers it would be
able to obtain in the market at the time following
receipt when it sees fit to make such conversion. The
Mortgagor will only satisfy its obligation to pay in
the required currency to the extent of the amount
actually or notionally received after deducting the
costs of conversion.
(2) The Mortgagor agrees to indemnify the Mortgagee for any
deficiency which arises for any reason between the
amount actually received pursuant to any judgment,
court or tribunal order or distribution under any
Insolvency Provision which takes into account any
currency conversion rate and the amount which would be
actually or notionally received by the Mortgagee by
applying the conversion provided for in this clause.
15. EXPENSES, STAMP DUTIES AND REGISTRATION
15.1 Expenses
The Mortgagor on demand will reimburse the Mortgagee for and keep
the Mortgagee indemnified against all expenses, including legal
fees, costs and disbursements (on a solicitor/own client basis)
incurred by the Mortgagee in connection with:
(1) (PREPARATION): the preparation, negotiation and
execution of this Mortgage and any subsequent consent,
agreement, waiver, amendment to, or discharge of this
Mortgage; and
(2) (ENFORCEMENT): the exercise, enforcement, preservation,
or attempted exercise, enforcement or preservation of
any rights under this Mortgage, including without
limitation any expenses incurred in the evaluation of
any matter of material concern to the Mortgagee.
The Mortgagor will bear the cost of its compliance with this
Mortgage.
15.2 Stamp duties
(1) (PAYMENT OF ALL DUTIES): The Mortgagor will pay all
stamp duty, transaction, registration and similar
Taxes, including fines and
<PAGE> 509
penalties, financial institutions duty and debits tax
which may be payable to or required to be paid by any
appropriate authority, or determined to be payable in
connection with the execution, delivery, performance
or enforcement of this Mortgage, or any payment,
receipt or other transaction contemplated by this
Mortgage.
(2) (INDEMNITY): The Mortgagor will indemnify the Mortgagee
against any loss or liability incurred or suffered by
it as a result of the delay or failure by the Mortgagor
to pay Taxes.
15.3 Registration
The Mortgagor will ensure that this Mortgage is registered in the
manner and within such time limits as may be prescribed by law to
ensure the full efficacy of this Mortgage as a security to the
Mortgagee in all relevant jurisdictions.
16. GOVERNING LAW AND JURISDICTION
16.1 Governing Law
This Mortgage is to be governed by and construed in accordance with
the laws of New South Wales.
16.2 Jurisdiction
(1) (ACCEPTANCE OF JURISDICTION): The Mortgagor irrevocably
submits to and accepts generally and unconditionally
the non-exclusive jurisdiction of the courts and
appellate courts of New South Wales with respect to any
legal action or proceedings which may be brought at any
time relating in any way to this Mortgage.
(2) (NO OBJECTION TO INCONVENIENT FORUM): The Mortgagor
irrevocably waives any objection it may now or in the
future have to the venue of any such action or
proceedings, and any claim it may now or in the future
have that that action or proceeding has been brought in
an inconvenient forum.
17. MISCELLANEOUS
17.1 Further Assurance
The Mortgagor will, and will procure that, all persons having or
claiming any estate or interest in the Mortgaged Property from time
to time and at all times after the date of this Mortgage on the
request of the Mortgagee and at the cost of the Mortgagor, will
make, do and execute or cause to be made, done and executed all
acts, deeds and assurances for:
(1) more satisfactorily securing to the Mortgagee the
payment of the Secured Money;
<PAGE> 510
(2) assuring or more satisfactorily assuring the Mortgaged
Property to the Mortgagee, or as the Mortgagee may
direct; or
(3) facilitating the exercise of any Power.
In particular, whenever requested to do so by the Mortgagee, the
Mortgagor will execute in favour of the Mortgagee legal mortgages,
transfers, assignments or other assurances of the Mortgaged
Property in terms acceptable to the Mortgagee.
17.2 Certificate of mortgagee
A certificate in writing signed by the Mortgagee or an officer of
the Mortgagee certifying the amount payable by the Mortgagor to the
Mortgagee or stating any other act, matter or thing relating to
this Mortgage or any Transaction Document is conclusive and binding
on the Mortgagor in the absence of manifest error on the face of
the certificate.
17.3 Notices
Any notice or other communication served, given or made under or in
connection with this Mortgage:
(1) must be in writing in order to be valid;
(2) is sufficient if executed by the party serving, giving
or making the same or on its behalf by any attorney,
director, secretary, other duly authorised officer or
solicitor of such party;
(3) will be deemed to have been duly served, given or made
in relation to a party if it is delivered or posted by
prepaid post to the address, or sent by facsimile to
the number of that party set out in the Transaction
Document or notified in writing by that party to the
other parties from time to time; and
(4) will be deemed to be served, given or made:
(1) (in the case of prepaid post) on the fifth day
after the date of posting;
(2) (in the case of facsimile) on receipt of a
transmission report confirming successful
transmission; and
(3) (in the case of delivery by hand) on delivery.
17.4 Assignment
The Mortgagee may at any time assign or otherwise transfer all or
any part of its rights under this Mortgage, and may disclose to a
proposed assignee or transferee any information in the possession
of the Mortgagee relating to the Mortgagor. The Mortgagor cannot
assign any of its rights under this Mortgage without the prior
written consent of the
<PAGE> 511
Mortgagee.
17.5 No Merger
Neither this Mortgage nor any of the Powers will merge or
prejudicially affect or be merged in or prejudicially affected by
and the Mortgagor's obligations under this Mortgage will not
in any way be abrogated or released by any other security, any
judgment or order, any contract, any cause of action or remedy, or
any other matter or thing at any time existing in respect of the
Secured Money.
17.6 Severability of Provisions
Any provision of this Mortgage which is illegal, void or
unenforceable will be ineffective to the extent only of that
illegality, voidness or unenforceability without invalidating the
remaining provisions.
17.7 Powers Cumulative
Each Power is cumulative and in addition to each other Power
available to the Mortgagee or the Receiver.
17.8 Waiver
A failure to exercise or enforce or a delay in exercising or
enforcing or the partial exercise or enforcement of any Power by
the Mortgagee will not in any way preclude, or operate as a waiver
of, any further exercise or enforcement of that or any other Power.
17.9 Consents
Any consent referred to in this Mortgage may be given or withheld
and may be given subject to any conditions, as the Mortgagee thinks
fit in its absolute discretion unless this Mortgage expressly
provides otherwise.
17.10 Written Waiver and Consent
Any waiver or consent given by the Mortgagee under this Mortgage
will only be effective and binding on the Mortgagee if it is given
or confirmed in writing.
17.11 Time of Essence
Time is of the essence in respect of the Mortgagor's obligations
under this Mortgage.
17.12 Moratorium Legislation
To the fullest extent permitted by law, the provisions of all
Statutes at any time operating directly or indirectly to lessen or
affect in favour of the Mortgagor any obligation under this
Mortgage, or to delay or otherwise prevent or prejudicially affect
the exercise of any Power, are expressly waived, negatived and
excluded.
<PAGE> 512
17.13 Binding on Each Signatory
This Mortgage is binding on each of the signatories notwithstanding
that any one or more of the named parties does not execute this
Mortgage, that there is any invalidity, forgery or irregularity
touching any execution of this Mortgage, or that this Mortgage is
or becomes unenforceable, void or voidable against a named party.
17.14 Counterparts
This Mortgage may be executed in a number of counterparts, all of
which taken together will be deemed to constitute one and the same
document.
17.15 No Representation by or Reliance on Mortgagee
The Mortgagor does not enter into this Mortgage in reliance on or
as a result of any representation, promise, statement, conduct or
inducement by or on behalf of the Mortgagee or by or on behalf of
the Mortgagee or any Stockholder otherwise than as set out in the
Transaction Documents.
<PAGE> 513
SCHEDULE
INTERPRETATION
In this Schedule "this Mortgage" means the Mortgage which this Schedule is
deemed incorporated into and includes each other Part of this Schedule.
STRATA TITLE CLAUSES
1. APPLICATION OF THIS PART
Subject to the operation of clause 13 of this Part, if the title to
the Mortgaged Property is now or at any future time comes under the
Strata Titles Act or the Strata Titles Leasehold Act, the balance
of this Part applies to the Mortgaged Property as and when the
Mortgaged Property comes, and for as long as it remains, under the
Strata Titles Act or the Strata Titles Leasehold Act.
2. DEFINITIONS
Where used in this Part, "ACT" means the Strata Titles Act 1973,
"LEASEHOLD ACT" means the Strata Titles Leasehold Act 1986, "STRATA
BUILDING" means all buildings constituting the Strata Scheme of
which the Mortgaged Property forms part; "COMMON PROPERTY", "STRATA
SCHEME", "LEASEHOLD STRATA SCHEME", "PARCEL", "BY-LAWS" and "BODY
CORPORATE" have the meanings given to them by the Act or the
Leasehold Act (whichever is applicable) with reference to the
Strata Building; "LOT" has the meaning given by those Acts with
reference to the Mortgaged Property; and "BUILDING" has the meaning
given by those Acts with reference to each Lot, as extended by
section 82(1) of the Act or sections 114(1) and (2) of the
Leasehold Act.
3. INSURANCE
1. The Mortgagor will insure and keep insured in the
name of the Mortgagee each of the Lots under
section 86(1) of the Act or section 118(1) of the
Leasehold Act in an amount not less than the total
amount secured by this Mortgage, and will if so
requested by the Mortgagee, insure and keep insured
in the joint names of the Mortgagor and the
Mortgagee the Mortgagor's improvements and fixtures
forming part of the Building.
2. Any Insurance will provide full cover against loss
or damage caused by fire, storm, tempest and
malicious acts and be with a reputable, responsible
and solvent insurer.
3. The Mortgagor will punctually pay all premiums and
sums necessary for effecting and keeping up any
Insurance and will hand to the Mortgagee every
policy and receipt relating to it. Every policy
will be held by the Mortgagee as further security
for the payment of the Secured Money.
<PAGE> 514
4. In the event of loss or damage, the Mortgagee alone
may but is not obliged to make, enforce, settle or
compromise every claim in respect
<PAGE> 515
of the Insurances, and give discharges for all
money payable under them. This clause 3 will
prevail over any term of this Mortgage to the
extent of any inconsistency.
4. BODY CORPORATE LEVIES
Whether or not the Mortgagee has entered into or taken possession
of the Mortgaged Property, the Mortgagor will duly and punctually
pay all contributions levied on the Mortgagor by the Body
Corporate, and all other money payable by the Mortgagor to the Body
Corporate in respect of the Mortgaged Property, and forthwith on
request will hand to the Mortgagee the receipt for each of the
payments. If the Mortgagor fails to do so or fails to pay any other
money due by the Mortgagor as proprietor of the Mortgaged Property,
the Mortgagee may pay it, and it will then form part of the Secured
Money and bear interest as provided in this Mortgage from the date
of payment of those costs and expenses.
5. COMPLY WITH ACT
The Mortgagor will duly and punctually comply with and observe all
obligations imposed on it as proprietor by the Act or the Leasehold
Act and all the By-laws from time to time in force to the extent
that they apply to the Mortgagor or the Mortgaged Property. The
Mortgagor will not exercise any power of voting for the purpose of
adding to, amending or repealing any of the By-laws without the
prior written consent of the Mortgagee, and if the Mortgagor
defaults under any provision of this clause the Mortgagee may but
is not obliged to do all acts and things as are necessary to remedy
the default, without prejudice to any other right, power or remedy
of the Mortgagee and at the cost of the Mortgagor.
6. NOTICES OF MEETINGS
The Mortgagor will immediately on receipt of every notice of a
meeting of the Body Corporate, deliver that notice to the
Mortgagee, to enable the Mortgagee to exercise the right to vote
conferred upon mortgagees by clause 2(2) of Part 1 of Schedule 2 of
the Act or clause 3(2) of Part 1 of Schedule 4 of the Leasehold
Act.
7. DISTRIBUTIONS
The Mortgagor will execute a form of consent under section 62(2)(a)
of the Act or section 92(2)(a) of the Leasehold Act to ensure
receipt of that distribution by the Mortgagee. The Mortgagor will
also pay to the Mortgagee any money received by it in the
circumstances referred to in section 63 of the Act or section 93 of
the Leasehold Act. Any money received by the Mortgagee in
accordance with this clause will be applied in reduction of the
Secured Money.
8. COMMON PROPERTY
The Mortgagor will not consent to any transfer or lease of the
Common Property or to the creation of any easement or restriction
affecting the Common Property or the Parcel or to the execution of
any other dealing within the meaning of section 28 of the Act or
section
<PAGE> 516
32 of the Leasehold Act, without the prior written consent
of the Mortgagee.
9. NOT VOTE
The Mortgagor will not vote at any meeting of the Body Corporate
contrary to the written direction (if any) of the Mortgagee.
10. INFORMATION FROM BODY CORPORATE
The Mortgagor irrevocably authorises the Mortgagee at any time to
obtain from the Body Corporate by inspection or otherwise all
information which the Mortgagee may require with respect to the
Body Corporate, the Strata Scheme, the Leasehold Strata Scheme, the
Lots and the Common Property. The Mortgagor will, upon request from
the Mortgagee promptly provide the Mortgagee with a certificate
pursuant to section 70(1) of the Act or section 100(1) of the
Leasehold Act.
11. NOTICE OF MORTGAGEE'S INTEREST
The Mortgagor will confirm the accuracy of the information
contained in any notice given by the Mortgagee to the Body
Corporate under section 81 the Act or section 113 of the Leasehold
Act.
12. APPLICATION TO STRATA TITLES COMMISSIONER
The Mortgagor will not make any application to the Strata Titles
Commissioner or to any Strata Titles Board or Court in respect of
the Mortgaged Property without the prior written consent of the
Mortgagee.
13. CONSTRUCTION OF UNIT BUILDING
5. If any Works on the Mortgaged Property consist of
or include the erection of a unit building or the
conversion (with or without structural alterations
or additions) of an existing building to that unit
building, the Mortgagor will forthwith on
completion of the Works pay all money and take all
steps necessary to procure the registration of a
strata plan under and in accordance with the Act or
the Leasehold Act (whichever is applicable) in
respect of the whole or that part of the Mortgaged
Property the subject of the Works, dividing it into
Lots corresponding with the home units comprised in
the Works.
6. In any interval between expiry of the policy
referred to in clause 6.1(a) of this Mortgage and
the commencement of the policy referred to in
clause 3 of this Part, the Mortgagor will insure
the Strata Building and keep it insured in the
names of the Mortgagor and the Mortgagee against
loss or damage by fire, explosion, storm and
tempest to its full insurable value and otherwise
in accordance with the provisions of clause 6 of
this Mortgage.
14. FURTHER EVENTS OF DEFAULT
<PAGE> 517
The following events are further Events of Default for the purposes
of this Mortgage:
7. (FAILURE TO MAINTAIN INSURANCES): the Body
Corporate fails to keep in full force and effect a
damage policy under section 83(1) of the Act or
section 115(1) of the Leasehold Act in respect of
the Strata Building to its full replacement value
and all other insurances as it is bound by section
84 of the Act or section 116 of the Leasehold Act
or by the By-laws or by resolution of the Body
Corporate to effect;
<PAGE> 518
8. (VARIATION OF STRATA SCHEME): the Body Corporate
passes any resolution under the provisions of
sections 25, 26(1)(a) or 26(1)(c) of the Act or
sections 29, 30(1)(a), 30(1)(c) or 39(1) of the
Leasehold Act or passes any resolution to vary or
terminate:
1. the Strata Scheme or Leasehold Strata Scheme
or substitute a new Strata Scheme, Leasehold
Strata Scheme or freehold strata scheme; or
2. any development statement or strata
management statement, without the prior
written consent of the Mortgagee; or
9. (UNPAID LEVIES): the Body Corporate or any other
person institutes proceedings against the Mortgagor
under sections 59(7), 60(3) or 60(4) of the Act or
sections 89(6), 90(3) or 90(4) of the Leasehold
Act.
- --------------------------------------------------------------------------------
<PAGE> 519
TABLE OF CONTENTS
CLAUSE PAGE
1. DEFINITIONS AND INTERPRETATION 1
1.1 DEFINITIONS 1
1.2 INTERPRETATION 2
2. THE MORTGAGE 3
2.1 THE MORTGAGE 3
2.2 PERFORMANCE OF OBLIGATIONS 4
2.3 CREDIT LEGISLATION NOT APPLICABLE 4
2.4 COLLATERAL TO DEBENTURE STOCK TRUST DEED 4
3. REPRESENTATIONS AND WARRANTIES 4
3.1 GENERAL REPRESENTATIONS AND WARRANTIES 4
3.2 REPRESENTATIONS AND WARRANTIES REPEATED 5
4. PROVISION OF INFORMATION 5
5. COVENANTS CONCERNING THE MORTGAGED PROPERTY 5
5.1 GENERAL RESTRICTIONS REGARDING THE MORTGAGED PROPERTY 5
5.2 ENCUMBRANCES AND RESTRICTIONS 6
5.3 STATUTORY REQUIREMENTS 6
5.4 REPAIR 7
5.5 USE OF MORTGAGED PROPERTY 7
5.6 COMPLETE WORKS 7
5.7 PAYMENTS DIRECT FOR WORKS 8
5.8 ENVIRONMENTAL REQUIREMENTS 8
5.9 LEASING 9
5.10 ENCROACHMENTS BY OR ONTO THE MORTGAGED PROPERTY 10
5.11 RESUMPTION ETC. AND RELEASE 10
5.12 CAVEATS 11
6. INSURANCE COVENANTS 11
6.1 INSURANCES 11
6.2 ASSIGNMENT OF INSURANCES 12
6.3 MAINTENANCE OF INSURANCES AND PRODUCTION OF POLICY 12
6.4 FULL DISCLOSURE AND COMPLIANCE WITH POLICIES 13
6.5 NO LIABILITY 13
6.6 OPTION AS TO PAYMENTS 13
(i)
<PAGE> 520
6.7 MONEY PAID TO MORTGAGOR 13
6.8 NOT PREJUDICE INSURANCES 13
7. EVENTS OF DEFAULT 13
8. MORTGAGEE'S POWERS 14
8.1 MORTGAGEE'S POWERS 14
8.2 MORTGAGEE'S RIGHT TO ENTER 16
8.3 MORTGAGEE MAY MAKE GOOD DEFAULT 17
8.4 TITLE DOCUMENTS 17
8.5 NOTICE FOR EXERCISE OF POWERS 17
9. RECEIVER 17
9.1 APPOINT RECEIVER 17
9.2 POWERS OF RECEIVER 18
9.3 JOINT RECEIVERS 18
9.4 REMUNERATION OF RECEIVER 18
9.5 AGENT OF THE MORTGAGOR 18
9.6 INDEMNITY 18
10. FURTHER POWERS OF MORTGAGEE AND RECEIVER 18
10.1 APPOINT AGENTS 18
10.2 ACT JOINTLY 18
10.3 POWER OF ATTORNEY 19
10.4 NO INTERFERENCE WITH POWER OF SALE 19
10.5 AUTHORITY TO COMPLETE BLANKS 19
11. APPLICATION OF MONEY 19
11.1 PRIORITY OF PAYMENTS 19
11.2 MONEY RECEIVED 20
11.3 APPLICATION OF PAYMENTS OR CREDITS 20
11.4 RELIANCE ON CERTIFICATE 20
12. LIABILITY AND RELEASE 20
12.1 CONTINUING OBLIGATION 20
12.2 PERSONAL LIABILITY 21
12.3 SETTLEMENT CONDITIONAL 21
12.4 MORTGAGOR'S LIABILITY NOT AFFECTED 21
12.5 RELEASE OF MORTGAGED PROPERTY 21
13. PROTECTION AND INDEMNITY 22
(ii)
<PAGE> 521
13.1 WAIVER BY MORTGAGOR 22
13.2 NO LIABILITY FOR LOSS 22
13.3 NO LIABILITY TO ACCOUNT 22
13.4 NO CONFLICT 22
13.5 NO NOTICE OR ENFORCEMENT 22
13.6 INDEMNITY 23
13.7 PROTECTION OF PERSONS DEALING WITH THE MORTGAGEE OR RECEIVER 23
14. PAYMENTS 24
14.1 MONEY REPAYABLE AS AGREED OR ON DEMAND 24
14.2 CREDIT BALANCES OF OTHER ACCOUNTS 24
14.3 PAYMENT OF INTEREST 24
14.4 CAPITALISATION OF INTEREST 24
14.5 MERGER 24
14.6 NO DEDUCTION FOR TAXES AND NO SET-OFF OR COUNTERCLAIM 24
14.7 MUTUAL ACCOUNTS 25
14.8 CURRENCY CONVERSION AND INDEMNITY 25
15. EXPENSES, STAMP DUTIES AND REGISTRATION 25
15.1 EXPENSES 25
15.2 STAMP DUTIES 26
15.3 REGISTRATION 26
16. GOVERNING LAW AND JURISDICTION 26
16.1 GOVERNING LAW 26
16.2 JURISDICTION 26
17. MISCELLANEOUS 26
17.1 FURTHER ASSURANCE 26
17.2 CERTIFICATE OF MORTGAGEE 27
17.3 NOTICES 27
17.4 ASSIGNMENT 27
17.5 NO MERGER 28
17.6 SEVERABILITY OF PROVISIONS 28
17.7 POWERS CUMULATIVE 28
17.8 WAIVER 28
17.9 CONSENTS 28
17.10 WRITTEN WAIVER AND CONSENT 28
17.11 TIME OF ESSENCE 28
17.12 MORATORIUM LEGISLATION 28
17.13 BINDING ON EACH SIGNATORY 28
(iii)
<PAGE> 522
17.14 COUNTERPARTS 29
17.15 NO REPRESENTATION BY OR RELIANCE ON MORTGAGEE 29
(iv)
<PAGE> 523
TABLE OF CONTENTS
CLAUSE PAGE
(v)
<PAGE> 524
TABLE OF CONTENTS
CLAUSE PAGE
(vi)
<PAGE> 525
INDEMNITY
DEED
(Principal Healthcare Finance Unit Trust No.3)
OMEGA WORLDWIDE, INC.
MINDRA PTY LIMITED
ANTHONY FRANK CRAWFORD
WARWICK MALCOLM CAISLEY
MICHAEL JOHN GILL
SCOTT ANTHONY MCDONALD
MICHAEL O'CONNOR
[PHILLIPS FOX LAWYERS LOGO]
255 Elizabeth Street Sydney NSW 2000 Australia
Tel +61 2 9286 8000 Fax +61 2 9283 4144 DX 107 SYDNEY
Email: [email protected] WWW site: http://www.Phillips
Fox.com.au
<PAGE> 526
INDEMNITY DEED
THIS AGREEMENT IS MADE AS A DEED ON 1998
PARTIES
OMEGA WORLDWIDE, INC. of 905 W Eisenhower Circle, Suite 110, Ann Arbor, Michigan
48103, United States of America (OMEGA)
MINDRA PTY LIMITED ACN 001 731 399 of Level 12, 255 Elizabeth Street, Sydney,
New South Wales, Australia (MINDRA)
ANTHONY FRANK CRAWFORD of 7 Elva Avenue, Killara, New South Wales, Australia and
WARWICK MALCOLM CAISLEY of 7 Gilda Avenue, Wahroonga, New South Wales, Australia
and MICHAEL JOHN GILL of 26 Kareela Road, Cremorne Point, New South Wales,
Australia and SCOTT ANTHONY MCDONALD of 4 Dalfour Street, Wollstonecraft, New
South Wales, Australia and MICHAEL O'CONNOR of 8 Oberon Crescent, Gordon, New
South Wales, Australia (OFFICERS)
RECITALS
A Mindra is the trustee of the Principal Healthcare Finance Unit Trust
No.3.
B The Officers are the directors of Mindra.
C Omega is the ultimate beneficiary of the Principal Healthcare Finance
Unit Trust No.3.
D Omega has requested Mindra to enter into certain transactions as
trustee of the Principal Healthcare Finance Unit Trust No.3.
E Mindra wishes to establish arrangements to ensure that it is adequately
protected from claims relating to its position as trustee of the
Principal Healthcare Finance Unit Trust No.3 and the Officers wish to
establish arrangements to ensure that they are adequately protected
from claims relating to their position with Mindra in relation to
actions taken by Mindra as trustee of the Principal Healthcare Finance
Unit Trust No.3.
<PAGE> 527
- -2-
F In consideration of Mindra agreeing to enter into certain transactions
as trustee of the Principal Healthcare Finance Unit Trust No.3 and in
consideration of the Officers taking all necessary actions to
facilitate Mindra entering into those transactions OWW has agreed to
indemnify Mindra and the Officers from liabilities incurred by reason
of Mindra entering into those transactions.
IT IS AGREED AS FOLLOWS:
I. DEFINITIONS AND INTERPRETATION
A. DEFINITIONS
TRUST means the trust known as the "Principal Healthcare Finance Unit
Trust No.3" constituted by a deed of trust dated 27 May 1998 between
Mindra as trustee and Beheer - en Beleggingsmaatschappij Rocla BV as
original unit holder.
B. PRESUMPTIONS OF INTERPRETATION
1. Unless the context otherwise requires a word which denotes:
a. the singular denotes the plural and vice versa;
b. any gender denotes the other genders; and
c. a person includes an individual, a body corporate, and a
government.
2. Unless the context otherwise requires a reference to:
a. any legislation includes any regulation or instrument made
under it and where amended, re-enacted or replaced means that
amended, re-enacted or replacement legislation;
b. a clause, schedule, annexure or exhibit is a reference to a
clause of, annexure to, schedule to or exhibit to this deed;
c. a group of persons includes any one or more of them.
<PAGE> 528
- -3-
II. INDEMNITY
A. INDEMNITY
OWW unconditionally and irrevocably indemnifies Mindra and the Officers
against all damage, loss, liability, cost, charges, expense, outgoing
or payment (including legal expenses on a solicitor/client basis)
suffered, paid or incurred by Mindra or the Officers in connection
with:
a. Mindra being the trustee of the Trust; and
b. any action taken by the Officers to facilitate any action
taken or to be taken by Mindra in its capacity as trustee of
the Trust.
B. CONTINUING INDEMNITY
The indemnity contained in clause 2.1 is a continuing indemnity and is
not voided or affected by the Officer resigning or otherwise ceasing to
act as an officer of the Company, or by the occurrence of any other
event.
C. PAYMENT ON DEMAND
Any moneys payable by the Company under clause 2.1 are payable by the
Company to the Officer on demand.
D. LIMITATION OF LIABILITY
OWW will have no liability under this deed to Mindra or the Officers in
relation to any damage, loss, liability, cost, charges, expense,
outgoing or payment suffered, paid or incurred by Mindra or the
Officers where such damage, loss, liability, cost, charges, expense,
outgoing or payment arises as a result of any fraud, dishonesty or lack
of good faith on the part of the Officers.
III. MISCELLANEOUS
A. LEGAL COSTS
The Company must pay its and the Officer's legal expenses relating to
the negotiation, preparation and execution of this deed.
<PAGE> 529
- -4-
B. STAMP DUTY
The Company must pay all stamp duty payable in connection with this
deed.
C. JOINT AND SEVERAL
An agreement or obligation which binds or benefits two or more persons
under this agreement binds or benefits those persons jointly and
separately.
D. AMENDMENT
This deed may only be varied by the written agreement of the parties.
E. COUNTERPARTS
This deed may be executed in a number of counterparts and if so
executed, the counterparts taken together constitute one deed.
F. SEVERANCE
Each of the agreements of the parties under this deed is severable from
the others and the severance of one agreement does not affect the other
agreements.
IV. GOVERNING LAW AND JURISDICTION
A. GOVERNING LAW
This deed is governed by and must be construed in accordance with the
laws of New South Wales.
B. JURISDICTION
Each party:
a. irrevocably and unconditionally submits to the non-exclusive
jurisdiction of the courts of New South Wales and all courts
which have jurisdiction to hear appeals from those courts; and
b. waives any right to object to proceedings being brought in
those courts for any reason.
<PAGE> 530
- -5-
* * *
EXECUTED AS A DEED
OMEGA WORLDWIDE INC.
- -------------------------------------------
By:
Title:
Date: June 1998
The common seal of MINDRA PTY LIMITED is
affixed in accordance with its articles of
association:
- ---------------------------------------- ----------------------------------
Signature of authorised person Signature of authorised person
- ---------------------------------------- ----------------------------------
Office held Office held
- ---------------------------------------- ----------------------------------
Name of authorised person (print) Name of authorised person (print)
Signed by ANTHONY FRANK CRAWFORD in the
presence of:
- ---------------------------------------- ----------------------------------
Signature of witness Signature of Tony Crawford
<PAGE> 531
- -6-
- -------------------------------------------
Name of witness (print)
Signed by WARWICK MALCOLM CAISLEY in the presence of:
- --------------------------------------- ----------------------------------
Signature of witness Signature of Warwick Caisley
- ---------------------------------------
Name of witness (print)
Signed by MICHAEL JOHN GILL in the
presence of:
- --------------------------------------- ----------------------------------
Signature of witness Signature of Michael Gill
- ---------------------------------------
Name of witness (print)
Signed by SCOTT ANTHONY MCDONALD in
the presence of:
- --------------------------------------- ----------------------------------
Signature of witness Signature of Scott McDonald
<PAGE> 532
- -7-
- --------------------------------------
Name of witness (print)
Signed by MICHAEL O'CONNOR in the
presence of:
- -------------------------------------- ----------------------------------
Signature of witness Signature of Michael O'Connor
- --------------------------------------
Name of witness (print)
